We’ve reached a turning point in the effort to ensure there are consequences for those who deliberately try to undermine our democracy: Michigan Attorney General Dana Nessel indicted 16 Republican leaders in her state on Tuesday for their role as bogus electors working to overthrow. the results of the 2020 election. The allegations, coming on the heels of news that special counsel Jack Smith informed Donald Trump that he was a target of the Justice Department’s investigation into the Capitol riot, mean we are witnessing a new and necessary phase in this that search for accountability, one in which the federal and state wheels of justice work to hold people accountable not only for the violence of January 6, but also for what got us there: the alleged scheme to obstruct the transfer of power .
The charges in Michigan are sure to be met with criticism from all sides. Some will say that the case is not broad or bold enough that Mr. Trump and the other alleged national leaders should be charged as well. Others will say Ms. Nessel cast too wide a net, pulling in low-level party officials who didn’t know any better. We think those criticisms are misunderstood. Ms. Nessel got it right, prosecuting crimes firmly in her jurisdiction, while paving the way for federal authorities to net even bigger fish.
Ms. Nessel brought the same eight counts against all 16 defendants. The offenses include conspiracy to commit forgery, as the defendants are accused of signing documents stating that they were the qualified electors (they were not), and publishing false documents by circulating those materials to federal and state authorities. On paper, the sentences for the offenses range from five to 14 years, but sentencing in this case would presumably be lower than that maximum.
So far there have been no charges centered on the fake voter plot. For this reason alone, Michigan’s action brings a sense of needed accountability for those who fanned the passions of the rioters before January 6 by spinning a false story about a stolen election.
Michigan has seen some of the most outrageous fake voter certificates appear during the period leading up to the Capitol riot. Unlike the false certificates in Pennsylvania and New Mexico, the Michigan documents did not include a disclaimer that they were to be used only in case of litigation. What’s more, the documents contained more outright false statements than simply stating that the signatories were the legal electors of the winning candidate.
For example, they state that the electors “met and organized in the State Capitol,” when, according to the attorney general, they were hidden away in the basement of the state Republican headquarters. (It seems likely that the fake electors included this lie because Michigan law requires presidential electors to meet at the Capitol — a requirement and legal problem that Trump campaign legal counsel Kenneth Chesebro flagged in his confidential memorandum setting the schema.)
Proving these cases, establishing intent will be key. Here, there are several indicators that the defendants may have been aware of the illegal nature of their meeting. According to congressional testimony from then-chairwoman of the state Republican Party, Laura Cox, the group originally planned to meet inside the Capitol and hide overnight so they could vote in the building the next day. Ms. Cox said she told a lawyer working with the Trump campaign and allegedly organizing the fake voters “in no uncertain terms that this was crazy and inappropriate,” and “a very, very bad idea and possibly illegal.”
As she said, Ms Cox was “very uncomfortable” facilitating a meeting of the bogus electorate group, and said so at the time in the opinion of her lawyers. Ms. Cox even encouraged the group to draft a significantly more measured document simply “stating that if something were to happen in the courts, they were willing and able to serve as Michigan’s electors for Donald Trump.” Her advice was not followed.
At the time the fake voters gathered to allegedly falsify their documents, they should have been aware that state officials had certified the election results for Joe Biden – it was national and state news By that point, there was no prospect of changing that outcome through either litigation or legislative action. On the day prosecutors say the bogus voters met, two of the most powerful Republicans in the state admitted it. Mike Shirkey, the majority leader in the State Senate, and Lee Chatfield, the House speaker, both issued statements declaring the presidential race over. Mr. Shirkey said Michigan’s “Democratic list of electors” should be able to continue their duty without the threat of harassment or violence.
The mock voters were told they were not allowed to bring their phones into the meeting at Republican headquarters that day, according to testimony one of them gave congressional researchers. They were instructed to maintain secrecy and not share any details of what happened. That secrecy suggests they knew what they were doing was wrong.
Michigan Secretary of State Terri Lynn Land, who was appointed as a Trump elector, declined to participate in the proceedings, sayingaccording to Mrs. Cox’s testimony, she was not comfortable doing so.
With these facts, it would be unthinkable that the state attorney general would choose not to prosecute the Michigan 16. Ms. Nessel’s office has regularly brought prosecutions, some of them against her fellow Democrats, centered on forged documents in connection with elections. The case of the fake voters is much more egregious than most of these other cases: the defendants here were politically engaged individuals who should have been aware of the election results, as well as the flat rejection by the courts and the Michigan Legislature of the campaign by Trump. claims of voter fraud.
Of course, some critics of the case may still think that the Michigan attorney general should be after Mr. Trump and his top lieutenants, who helped organize the fraudulent electors. But prosecutors have a responsibility to first prosecute those individuals within their jurisdiction. By focusing only on the figures who committed their actions in Michigan, Ms. Nessel wisely insulates her case against accusations that she overstepped her jurisdiction.
Of course, broader prosecutions may still be justified. Reporting indicates that the district attorney of Fulton County, Ga., Fani Willis, may be considering a different kind of sweeping case, involving state RICO crimes. Unlike the Michigan prosecution, her case may focus on Mr. Trump’s direct efforts to pressure state election officials — efforts that were caught on tape — and Rudy Giuliani’s attempt to provide false statements about election fraud to state officials.
If broad-based charges finally emerge from Georgia, and are supported by the facts and appropriate law, then we would welcome it. That’s part of the genius of American democracy: The states that are responsible for guiding our elections are laboratories of both democracies. and of responsibility
Ms. Nessel’s case also leaves a clear path for Mr. Smith, the special counsel. She has avoided charging high-level national individuals that Mr. Smith is apparently investigating. If anything, her case provides a greater foundation for Mr. Smith to act, and he now appears to be following through. If Ms. Nessel can move against these individuals in Michigan, Mr. Smith can and should do the same against the bosses. Together, they can hold both the foot soldiers and their organizers accountable for their actions leading up to the Capitol riot.
Norman Eisen, a senior fellow at the Brookings Institution, was special counsel to the House Judiciary Committee for the first impeachment and impeachment of Donald Trump. Ryan Goodman, a law professor at New York University, is editor-in-chief of the website Just Security.
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