Previously secret memo laid out strategy for Trump to overturn Biden’s win

August 10, 2023

A missing piece in the public record of how Trump’s allies developed their strategy to overturn Biden’s victory has come to light: Kenneth Chesebro, a lawyer associated with former President Donald Trump, first outlined the plot to use false slates of electors to subvert the 2020 election in a previously unknown internal campaign memo, reports The New York Times.

Prosecutors now are portraying that memo as a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy.

The existence of the December 6, 2020, memo came to light in last week’s indictment of Trump, although its details remained unclear. But a copy obtained by the Times shows for the first time that the lawyer, Kenneth Chesebro, acknowledged from the start that he was proposing “a bold, controversial strategy” that the Supreme Court “likely” would reject in the end.

But even if the plan did not ultimately pass legal muster at the highest level, Chesebro argued that it would achieve two goals. It would focus attention on claims of voter fraud and “buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”

Chesebro proposed that, in mid-December, the false Trump electors could go through the motions of voting as if they had the authority to do so. On January 6, 2021, then-Vice President Mike Pence could unilaterally count those slates of votes, rather than the official and certified ones for Joe Biden.

While that basic plan itself was already known, the document, described by prosecutors as the “fraudulent elector memo,” provides new details about how it originated and was discussed behind the scenes.

Among those details is. Chesebro’s proposed “messaging” strategy to explain why pro-Trump electors were meeting in states where Biden was declared the winner. The campaign would present that step as “a routine measure that is necessary to ensure” that the correct electoral slate could be counted by Congress, if courts or legislatures later concluded that Trump had actually won the states.

It was not the first time that Chesebro had raised the notion of creating alternate electors. In November, he had suggested doing so in Wisconsin, although for a different reason: to safeguard Trump’s rights in case he later won a court battle and was declared that state’s certified winner by January 6, as had happened with Hawaii in 1960.

But the indictment portrayed the December 6 memo as a “sharp departure” from that proposal—becoming what prosecutors say was a criminal plot to engineer “a fake controversy that would derail the proper certification of Biden as president-elect.”

“I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on January 6,” Chesebro wrote. “But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on December 14.”

Three days later, Chesebro drew up specific instructions to create fraudulent electors in multiple states—in another memo whose existence, along with the one in November, was  first reported by the Times last year. The House committee investigating the January 6 riot also cited them in its December report, but it apparently did not learn of the December 6 memo.

“I believe that what can be achieved on January 6 is not simply to keep Biden below 270 electoral votes,” Chesebro wrote in the newly disclosed memo. “It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional, or otherwise recognizing the power of Congress (and not the president of the Senate) to count the votes.”

Chesebro and his lawyer did not respond to requests for comment. A Trump spokesperson did not respond to an email seeking comment.

The false electors scheme was perhaps the most sprawling of Trump’s various efforts to overturn the results of the 2020 election. It involved lawyers working on his campaign’s behalf across seven states, dozens of electors willing to claim that Trump—not Biden—had won their states, and open resistance from some of those potential electors that the plan could be illegal or even “appear treasonous.”

In the end, it became the cornerstone of the indictment against Trump.

While another lawyer, John Eastman—described as Co-Conspirator 2 in the indictment —became a key figure who championed the plan and worked more directly with Trump on it, Chesebro was the architect of it.

Research contact: @nytimes