The secret memo and obscure lawyer at the center of the Trump indictment

• Former President Donald Trump’s attempt to overturn the 2020 election has brought a lot of national attention to a previously unknown lawyer: Kenneth Chesebro, christened “Co-Conspirator 5” in special counsel Jack Smith’s federal indictment on Aug. 1. Amid the swarm of bold-faced public figures who have dominated the public narrative around Jan. 6 — not only Trump but Mark Meadows, Rudy Giuliani and John Eastman — Chesebro has stayed mostly under the radar. But this week we have seen, for the first time, the text of a shocking Dec. 6, 2020, memo — first published by The New York Times — that is at the heart of the alleged crimes. It gives new prominence to Chesebro and exposes critical new details of the allegedly criminal scheme to overturn the 2020 election. 

The public had already seen other memos sent by Chesebro and additional co-conspirators describing the audacious plot to create fake electoral slates and use them to press Vice President Mike Pence to reject the genuine state electors on Jan. 6. And we did know a little bit about this heretofore unseen piece of evidence. Smith’s indictment says this memo was “a sharp departure” from Chesebro’s earlier Nov. 18, 2020, memorandum outlining a plan to organize alternate electors in Wisconsin, where election litigation was pending. But the indictment’s description was relatively general.      

Now that we have the actual document, we can see precisely how the scheme evolved: from an earlier, perhaps legitimate effort to preserve Wisconsin electors for Trump based on genuine litigation into a nationwide sham.

In the Dec. 6 memo, Chesebro argued that the phony Trump electors in six states should meet and certify their votes so that they could later be presented at the Jan. 6 congressional proceeding to certify the winner. This would provide the opportunity for the enactment of the nonsensical legal theory Chesebro promulgated: that Pence, single-handedly, held the power to count the electoral votes and could therefore simply disregard legitimate Biden electors, handing victory to Trump.  

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Chesebro himself indicated in the memo that he knew this legal theory was dubious, using euphemisms like “bold” and “controversial” to describe it. He acknowledged that the Supreme Court would “likely” reject it. Nevertheless, the memo bluntly declares a goal that was allegedly criminal: to “prevent Biden from amassing 270 electoral votes” even though Biden had legitimately won more than that number. 

In assessing the legality of what Chesebro and his associates were proposing, we should think of these fake electoral certificates the same way we would counterfeit money. What Chesebro, Trump, Eastman and the rest of the alleged conspirators wanted Pence to do seems equivalent to passing phony money. Or worse, walking into Congress and declaring that our true currency had been nullified and the counterfeit money was the official legal tender of the United States.

It’s clear Chesebro’s true intention was not to present a neutral or even novel legal theory. This was fundamentally a political strategy, cloaked in the garb of the law.     

This crucial distinction also helped tip Chesebro over from legal adviser to co-conspirator. His Dec. 6 memo contains contradictions, distortions and misrepresentations. And the cleverness (by half) of his plan — in contrast to some of the inept lawyering that surrounded the Trump campaign (remember the “Kraken”?) — made it all the more insidious. 

The memo also included proposed messaging that contradicted Chesebro’s own expressed opinions. While acknowledging that he was presenting a “bold, controversial strategy” that was “likely” to be overturned by the Supreme Court, Chesebro also suggested that “there should be messaging that presents this as a routine measure.” 

Moreover, it misrepresented the scholarship of Laurence Tribe, the noted Harvard Law School constitutional scholar and Chesebro’s former teacher. In one instance, Chesebro quoted a fragment from a sentence Tribe had written in the context of Bush v. Gore in 2000; Chesebro’s memo states that “the only real deadline for a State’s electoral votes to be finalized is ‘before Congress starts to count the votes on January 6,’” the internal quotes coming from a law review article Tribe wrote in 2001.

But this citation is misleading at best. Tribe was discussing Florida state election law specifically, and was not suggesting, as he wrote in a recent essay excoriating Chesebro’s use of his work, “a general proposition about the power of States to do what they wish regardless of the Electoral Count Act and independent of the deadlines set by Congress.” 

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As federal Judge David Carter wrote, the Jan. 6 scheme was “a coup in search of a legal theory.” Chesebro was determined to provide that theory, seemingly irrespective of its legality or integrity. And according to Smith’s indictment, that work was an essential part of the larger plot.      

Ultimately, Chesebro’s memo highlights a theme of the Trump indictment: the corrupting of the legal profession in the service of one man, a coup attempt, and illicit political power. Lawyers like Chesebro promoted arguments that they seeem to have known were not legally sound, and did so in hopes of creating conditions on the ground to achieve their favored political ends outside proper legal channels.

In the newly revealed memo, Chesebro argued for his plan regardless of whether the Supreme Court ultimately ruled against it because the legality of assembling fake electors or the constitutionality of the Electoral Count Act was not principally the point. Donald Trump being sworn in as president on Jan. 20, 2021, was the point. Period. 

Prominent legal ethics experts, including one of us, have called for Chesebro’s disbarment. The state bar of California has already put together a case to disbar John Eastman that is currently being litigated. And a Washington, D.C., bar discipline committee concluded that Rudy Giuliani’s law license should be revoked.

Fundamentally, Jack Smith brought his indictment to uphold the rule of law. His case serves to counteract the allegedly lawless wreckage created, in part, by lawyers like Chesebro — who are officers of the court and swore an oath to protect the rule of law. The newly revealed memo exposes just how deep the corruption was.