Craig MaugerThe Detroit News
Lansing — Defense lawyers representing some of the Republican electors whose signatures appeared on a certificate falsely claiming Donald Trump won Michigan in 2020 suggested during a Tuesday court hearing their clients might not have read or seen the key page of the document.
The false certificate, which Trump supporters later mailed to the U.S. Senate and the National Archives in an attempt to overturn Democrat Joe Biden's victory, included one page that was a signature sheet and one page that incorrectly described the Republicans as Michigan's "duly elected and qualified electors."
In questioning witnesses Tuesday, defense lawyers — including David Kallman, who's representing Hank Choate of Cement City — raised the possibility that some of the Republicans simply signed the signature sheet without seeing or understanding the other page, which was the certificate of the vote and featured multiple false statements.
Such a possibility would potentially undercut prosecutors' argument that the GOP electors had an intent to defraud the people of Michigan and would raise questions about which advisers misled the electors or attached their signatures to the false certificate without their knowledge.
"You have no information that Hank Choate ever saw that page prior to his signing Page 4?" Kallman asked Dan Schwager, who was general counsel for the secretary of the U.S. Senate in 2020.
However, Schwager repeatedly noted on Tuesday that the signature sheet featured a sentence at the top that began with "in witness whereof," essentially meaning the signers were confirming some set of facts.
"The information that I have is that whoever signed that page signed it under a statement that says 'in witness whereof,'" Schwager responded to Kallman's question.
The exchanges about what the false electors knew or didn't know when they gathered inside Michigan Republican Party headquarters on Dec. 14, 2020, highlighted the first day of preliminary examinations for a second round of GOP electors whose names appeared on the false certificate.
Prosecutors and defense lawyers also clashed over whether the Republican electors should be described as false electors during the court proceeding.
Through the exams, Ingham County District Court Judge Kristen Simmons will eventually decide whether Attorney General Dana Nessel's office has presented enough evidence to show there's probable cause to believe crimes were committed by the Republican electors and they should stand trial.
In July, Nessel's office charged each of the 16 false electors with eight felonies, including forgery, which carries a maximum penalty of up to 14 years behind bars. To be successful, Nessel's team must prove the false electors had an "intent to injure or defraud another person," according to Michigan law.
Where the charges stand
The preliminary examinations for six of the GOP electors concluded in April after six days of testimony: Republican National Committeewoman Kathy Berden of Snover; Amy Facchinello of Grand Blanc; John Haggard of Charlevoix; Mari-Ann Henry of Brighton; Michele Lundgren of Detroit; andformer Michigan Republican Party Co-Chairwoman Meshawn Maddock of Milford.
The exams for another six Republicans started on Tuesday: Choate, Clifford Frost of Warren, Mayra Rodriguez of Grosse Pointe Farms, Rose Rook of Paw Paw,Marian Sheridan of West Bloomfield andKen Thompson of Orleans.
For three others, the exams will apparently take place at a later date: Shelby Township Clerk Stan Grot, Timothy King of Ypsilanti and Wyoming Mayor Kent Vanderwood.
The 16th elector, James Renner of Lansing, reached a cooperation deal with the Attorney General's office, and the charges against him were dropped.
Prosecutors' first witnesses on Tuesday were Miriam Vincent, senior staff attorney for the Office of the Federal Register, and Schwager, who mainly testified about the process of handling electoral certificates and the false representations that were in the GOP certificate.
Biden had won Michigan's 16 electoral votes by prevailing 51%-48% over Trump. But Michigan was one of seven battleground states where Republicans submitted their own sets of electoral votes as part of an unsuccessful bid to flip Biden's victory in Congress when lawmakers met on Jan. 6, 2021, to count the votes.
Michigan investigators have gathered text messages and emails showing officials within Trump's campaign and lawyers advising them laying out detailed plans for how Republicans posing as states' electors could spur lawmakers or then Vice President Mike Pence to alter the outcome of the election.
On Tuesday, Schwager testified that his initial reaction to the Senate receiving the false certificates was an "oh my God kind of reaction" and "an alarm that something like that was created by actual party-nominated electors apparently."
'I have no idea'
Michael Bullotta, the attorney representing Rook, pressed Schwager on whether he knew what the false electors' mindsets were when they signed the certificates.
Bullotta asked if Schwager knew whether the GOP electors had been told by Republican lawyers during the closed-door meeting on Dec. 14, 2020, to sign the sheet so they could simply be an alternate slate, as a contingency in case a court intervened and eventually overturned the result of the election.
"I have no idea what they were told," Schwager replied.
So far, Nessel's office has charged only the false electors themselves. In other states, like Arizona and Georgia, prosecutors brought criminal allegations against members of the Trump campaign who allegedly guided the strategy.
Bullotta also asked Schwager if a regular person would necessarily understand that the phrase "in witness whereof" meant they were vouching for a set of statements.
"Would you expect your mom to be able to know what that means?" asked Bullotta, whose client, Rook, is in her 80s.
"You don't even know if the electors knew 'in witness whereof' (meant) that there was something else that they should have to read before they signed it?" Bullotta questioned at one point.
"I don't know that," Schwager responded.
Social media messages
Prosecutors have used social media posts made by the Republican electors themselves to try to prove they understood what they were doing when they signed the false certificate.
On Tuesday, the Attorney General's office presented posts from Rook. On the night of Dec. 14, 2020, someone had asked Rook, according to the evidence, "Did you get to vote today?"
Rook replied, "Yes, I did, but we got slapped in the face by Shirkey and Chatfield," referring to then-Michigan Senate Majority Leader Mike Shirkey and then-Michigan House Speaker Lee Chatfield.
On Dec. 14, 2020, Shirkey and Chatfield, two Republicans, issued statements saying they wouldn't use their positions in an attempt to overturn the popular vote in favor of Biden.
Shirkey in a statement said the slate of electors should be able to proceed with their duty "free from threats of violence and intimidation," and acknowledged that Biden won Michigan's election.
False electors?
The defense lawyers argued on Tuesday that prosecutors shouldn't be allowed to refer to their clients as "false electors" or a "false slate of electors" during the preliminary examinations.
Such descriptions in court weren't fair because prosecutors hadn't proven that the individuals were false electors or that they intended to be false electors, Bullotta contended.
"It's just not fair to a criminal defendant," Bullotta said.
Likewise, John Freeman, who's representing Sheridan, asked Simmons to direct the prosecution "not to use the terminology" that the judge had previously asked them not to.
"And if they continue to do so, then I think we collectively as attorneys can ask for whatever sanctions we think are appropriate. But it needs to stop," Freeman said.
Simmons asked the prosecutors not to describe the Republican electors as false electors. However, she added, at one point, if they didn't intend the certificate to be false, it didn't mean it wasn't false.
The preliminary examinations will continue on Wednesday.
cmauger@detroitnews.com
