A part of former President Donald Trump’s effort to overturn the 2020 presidential election involved an effort to misuse the Electoral College in seven battleground states. On Dec. 14, 2020, legitimate members of the Electoral College met across the country to sign certificates declaring which presidential candidate won their state. That day, in several states that Biden had won, Republicans met to sign certificates declaring that they were the “duly elected and qualified” members of the Electoral College and falsely declaring Trump the winner of their state. They sent their documents to the National Archives.
In the runup to Jan. 6, 2021, these false certificates were used in an effort to claim that Vice President Mike Pence could decide either not to recognize any electors from these “disputed states” (meaning an outright Trump win) or else delay the certification of the election.
These actions, and the conspiracy that gave rise to them, have been the subject of multiple criminal indictments. The scheme is included among the conduct charged in the federal indictment against former President Donald Trump by the Department of Justice’s Office of Special Counsel. False electors in Arizona, Georgia, Michigan, and Nevada also face criminal charges. In Wisconsin, the false electors and two attorneys who aided and abetted them settled civil litigation arising from their actions, and a criminal investigation in Wisconsin is reportedly ongoing.
What follows is a Timeline that provides the most comprehensive factual record to date showing the points of contact between Donald Trump and his close associates and the false slate of electors scheme. This includes documents recently disclosed as a result of the settlement of Penebaker v. Hitt, the civil case brought against the false Wisconsin electors and the attorneys who abetted them.
Just Security has separately published a Backgrounder on the alternate slate of electors scheme as well as a legal analysis of the activities by a leading election law scholar. An analytical examination authored by attorneys at the Institute for Constitutional Advocacy and Protection, who litigated the Penebaker case, is also available.
A few findings that are contained in the Timeline below:
- The Trump team planned, directed, and coordinated the false alternate slate of electors scheme.
- The false alternate slate of electors was a “critical” part of the Trump-John Eastman conspiracy, according to a federal district court opinion issued in June.
- The false alternate slate of electors was a central part of the Trump-Jeffrey Clark scheme to use the Justice Department to try to overturn the election.
- The Trump team publicly suggested these alternate slates were to preserve an option if courts vindicated Trump’s legal challenges.
- Trump and his alleged co-conspirators privately pursued the false electors scheme in an effort to get VP Pence to overturn the election – even if court challenges failed and had been exhausted, state legislatures rebuffed the Trump effort, and the electors came with no certification.
TIMELINE
1. Nov. 4, 2020: Former Secretary of Energy in the Trump administration, Rick Perry texts White House Chief of State Mark Meadows proposing an“AGRESSIVE[sic] STRATEGY” to have state legislatures ignore the will of their voters and deliver their states’ electors to Trump:
“HERE’s an AGRESSIVE[sic] STRATEGY: Why can t (sic) the states of GA NC PENN and other R controlled state houses declare this is BS (where conflicts and election not called that night) and just send their own electors to vote and have it go to the SCOTUS.”
2. Nov. 5, 2020: At 12:51pm, Donald Trump Jr. texts Meadows proposing that Republican-controlled state assemblies “step in” and put forward separate slates of “Trump electors.” “Republicans control Pennsylvania, Wisconsin, Michigan, North Carolina etc we get Trump electors,” Trump Jr. adds. “We have multiple paths We control them all,” he writes.
3. Nov. 6, 2020: Rep. Andy Biggs texts Mark Meadows about efforts to encourage Republican legislators in certain States to send alternate slates of electors which Biggs acknowledges would be “highly controversial.” He asks Meadows, “Is anybody on the team researching and considering lobbying for that?” Meadows replies: “I love it.”
4. Nov. 7, 2020: In an email that Meadows produces for the select committee, a message discusses appointment of alternate slate of electors as part of a “direct and collateral attack” after the election (Letter from Bennie Thompson to Mark Meadows’ attorney).
5. Nov. 7, 2020: Using a burner social media account that has since been identified by state investigators, Kenneth Chesebro is posting about how Trump could use alternate electors without judicial intervention, saying, “You don’t get the big picture. Trump doesn’t have to get courts to declare him the winner of the vote. He just needs to convince Republican legislatures that the election was systematically rigged, but it’s impossible to run it again, so they should appoint electors instead.”
6. Nov. 8, 2020: The day after the election was called for Biden, Chesebro emails James Troupis, a prominent Republican lawyer in Wisconsin and top attorney for the Trump Campaign in the state. Chesebro says that he “would be happy to volunteer for the Trump legal team, if that would be helpful” and says that if “various systemic abuses can be proven,” he didn’t “see why electoral votes certified by [Governor] Evers … should be counted over an alternative slate [of electors] sent in by the legislature.” Chesebro then says, “At minimum, with such a cloud of confusion, no votes from WI (and perhaps also MI and PA) should be counted, perhaps enough to throw the election to the House.” (Penebaker docs: Troupis docs, p. 2) Around the next day, Troupis asks Chesebro to help out with the Trump Campaign’s post-election work (Chesebro congressional deposition; p. 13).
7. Nov. 9, 2020: In Pennsylvania, Rudy Giuliani drafted a “meaningful portion” of a lawsuit filed challenging the state’s election results, in order to reinsert “allegations about widespread election fraud that were important to his national litigation strategy.” This was Giuliani’s unofficial entrance into litigation that the D.C. Bar Association said he based “only on speculation, mistrust, and suspicion,” which ultimately resulted in disciplinary action against him. The Bar Association assessed that the claims were “frivolous” to the point that “a reasonable attorney would have concluded that there was not even a faint hope of success.” (D.C. Bar Association July 7, 2023 report: pp. 8, 15).
8. Nov. 11 – Nov. 17, 2020: Troupis and Chesebro continue to communicate about the possibility of alternate slates of electors. Chesebro tells Troupis on Nov. 11 that he “did a memo, which I hope I can get to you securely.” (Penebaker docs: texts, p. 2) On Nov. 15, Troupis texts Chesebro that he is “headed to Washington in the AM to brief the White House. More and more it looks like a go in Wisconsin.” (Penebaker docs: texts, p. 3) Chesebro responds with a long message, which includes his saying he had “thoughts” about how state legislators could “make findings that Trump supporters in the Jan 6 joint session could rely on to cast doubt on the validity of the electoral votes cast for Biden.” (Penebaker docs: texts, pp. 3-4)
9. Nov. 17, 2020: Chesebro sends Troupis a 5-page draft memorandum entitled, “The Real Deadline for Settling a State’s Electoral Votes.” In an email transmitting the memo, Chesebro writes that Troupis “requested” the memo and that the details included “may be worthwhile if this is a topic that might be of interest in multiple states.” (Penebaker docs: Chesebro email to Troupis, Nov. 17). In the memo, Chesebro writes, “Assuming the electors pledged to Trump and Pence end up meeting at the Wisconsin Capitol on December 14, 2020, to cast their votes, and then send their votes to the President of the Senate in time to be opened on January 6, 2021, a court decision (or, perhaps, a state legislative determination) rendered after December 14, 2020, in favor of the Trump-Pence slate of electors should be considered timely.”
The memo describes January 6th as the ultimate date of significance and the “hard deadline,” and outlines the need for alternate slates of electors to meet on Dec. 14 and issue a certification for Trump. He writes that “a court decision (or, perhaps, a state legislative determination) rendered after December 14 in favor of the Trump-Pence slate of electors should be considered timely” for the counting of electoral votes on Jan. 6 (emphasis added). Chesebro describes in detail the Hawaii 1960 case in Kennedy-Nixon, in which Democrats met to issue a declaration during the state’s recount (which Kennedy ultimately won).
[Aside: See below also Chesebro memo to Troupis on Dec. 6, Chesebro memo to Troupis on Dec. 9; Chesebro memo to Giuliani on Dec. 13; Chesebro forwarding his Giuliani memo to Eastman on Jan. 2.]
The New York Times reported that Chesebro’s memos later formed part of the Trump lawyers’ efforts:
“The memos were initially meant to address Mr. Trump’s challenge to the outcome in Wisconsin, but they ultimately became part of a broader conversation by members of Mr. Trump’s legal team as the president looked toward Jan. 6 and began to exert pressure on Mr. Pence to hold up certification of the Electoral College count.”
“The language and suggestions in the memos from Mr. Chesebro to Mr. Troupis closely echo tactics and talking points that were eventually adopted by Mr. Trump’s top lawyers.”
10. Nov. 18, 2020: Chesebro asks Troupis if he should “finalize memo [sic] on a real deadline,” and said, “I think we should be sure national lawyers are aware of these points.” (Penebaker docs: texts, p. 6)Troupis responds, “Yes on memo. Make appropriate changes knowing that it goes to a wider audience.” The November 17 draft memorandum is then apparently revised as a 7-page memorandum on November 18.
The same day, John Eastman emails Troupis asking to speak about “extremely important information” that would assist the Trump Campaign’s efforts in Wisconsin. (Penebaker docs: Eastman email to Troupis, Nov. 18) This appears to have been Troupis’s first contact with Eastman.
11. Nov. 19 – Nov. 23, 2020: Chesebro again asks Troupis to send his memo to others in the Trump Campaign and continues to send messages about the possibility of invalidating Wisconsin’s electoral votes. (Penebaker docs: texts, p. 17) For example, on Nov. 23, Chesebro tells Troupis that if the courts cannot fix alleged problems with the vote totals, “the Legislature should decree that the voters of Wisconsin…have FAILED TO MAKE A CHOICE” and appoint electors themselves. (Penebaker docs: Chesebro email to Troupis, Nov. 23).
12. Nov. 23, 2020: Sen. Mike Lee (R-UT) texts Meadows:
“John Eastman has some really interesting research on this. The good news is that Eastman is proposing an approach that unlike what Sidney Powell has propose [sic] could be examined very quickly.”
Sen. Lee texts again:
“But to do this, you’d have to act very soon. Some believe today might be the deadline for some of this in PA.”
13. Nov. 25, 2020: Troupis forwards a memo by Chesebro to Trump Campaign attorney Justin Clark and writes, “Here is the memo we discussed about potentially moving the drop dead date back by several weeks in naming electors.” (Penebaker docs: Troupis email to Clark and Chesebro, Nov. 25) The document attached to the email is entitled, “Electors Date of selection may be January not December.” Troupis tells Clark to contact him or Chesebro with any follow-up questions. Clark responds to Troupis less than an hour later, thanking him for sending along the memo. (Penebaker docs: Clark email to Troupis and Chesebro, Nov. 25). Later that day, Chesebro texts Troupis, “Jim, unless you think it’s a waste of time, I plan to draft a memo, in simple question-and-answer format, arguing that the Trump campaign nationwide should push back on any idea that it needs to win in enough states by December 8 to have 270 electoral votes by then,” and also states, “Only plausible way to have time enough to win is to say Jan 6 is the deadline. Which is legit if the Trump electors cast all their votes on Dec 14, which they don’t need court or legislature authorization to do.” (Penebaker docs: texts, pp. 23-24).
14. End of Nov. and first week of Dec. 2020: “Eastman sent memos to high-level White House staff explaining that the January 6 plan required legislators ‘to determine the manner of choosing electors, even to the point of adopting a slate of electors themselves,’” according to Judge Carter’s June 2022 opinion (emphasis added).
[See Eastman 7-page memo sent to White House on Nov. 28, 2020, entitled, “The Constitutional Authority of State Legislatures to Choose Electors.” This third memo has not received the same attention as Eastman’s other two subsequent memos.]
15. Dec. 6, 2020: Chesebro sends Troupis another memo, entitled, “Important That All Trump-Pence Electors Vote on December 14.” Chesebro’s memo advises the Trump Campaign to “seriously consider” a “bold, controversial strategy” wherein Trump-Pence electors would meet in six contested States, including Wisconsin, that would “guarantee that public attention would be riveted on evidence of electoral abuses by the Democrats, and would also buy the Trump Campaign more time to win litigation that would deprive Biden of electoral votes,” regardless of whether the Trump Campaign had managed to obtain favorable court decisions by the December 14 meeting date.
The memo further states that this strategy requires that there must be, “pending, on January 6, in each of the six States, at least one lawsuit, in either federal or state court, which might plausibly, if allowed to proceed to completion, lead to either Trump winning the State or least Biden being denied the State.” Finally, the Dec. 6 Memo states that Vice President Pence, under these conditions, could take “the position that it is his constitutional power and duty, alone, as President of the Senate, to both open and count the votes.” Chesebro adds, “I’m not necessarily advising this course of action.”
16. Dec. 6, 2020: Meadows (using his gmail account) emails Jason Miller, a senior aide on the Trump Campaign. The email includes a Chesebro memo (attachment “2020-11-20 Chesebro memo on real deadline2.pdf”). Meadows tells Miller: “We just need to have someone coordinating the electors for states.”
17. Dec. 7, 2020: John Eastman forwards Chesebro’s 7-page memo apparently for President Trump. In a June 2022 order, judge Carter wrote:
“The previously disclosed documents indicate that Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020. On that day, Dr. Eastman forwarded a memo explaining why January 6 was the ‘Hard Deadline’ that was ‘critical to the result of this election’ for the Trump Campaign.’”
In his cover note, Eastman writes, “Here’s the memo we discussed.”
18. Dec. 7, 2020: Chesebro again urges Troupis to pass this latest memo along to the Trump Campaign, writing, “I feel this memo – on why it’s important all electors vote in all 6 contested states on Dec. 14 – should get to Justin Clark and others involved with national strategy ASAP. We’re only 7 days away now.” Chesebro also offers to write an additional memo about how it might be “possible to prevent Biden from being elected” if “litigation is pending” in contested states on January 6, 2021. (Penebaker docs: Chesebro email to Troupis, Dec. 7).
Troupis does as Chesebro asked. He responds to Chesebro later that day and says that he had “bypassed” Clark “and am tryouts no [sic] to get it circulated at the White House.” Troupis also confirms, more intelligibly, via text message, and says, “I have sent it to the White House this afternoon. The real decision makers.” He adds, “I also gave it to Reince [Priebus] so he might talk with the President.” (Penebaker docs: texts, p. 31).
Troupis also emails Trump Campaign advisor Boris Epshteyn and writes, “Here are two memo’s [sic] I had prepared for me on appointing a second slate of electors in Wisconsin. The second slate just shows up at noon on Monday and votes and then transmits the results. It is up to Pence on Jan 6 to open them.” He further wrote that, “Our strategy, which we believe is replicable in all 6 contested states, is for the electors to meet and vote.” He further explained that the scheme would help ensure that “the election remains in doubt until January.” He again offered up Chesebro’s services if Epshteyn wanted to take the strategy further. (Penebaker docs: Troupis email to Chesebro et al., Dec. 9)
19. Dec. 8, 2020: Sen. Mike Lee (R-UT) texts with Meadows:
“If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.”
Meadows replies to Lee:
“I am working on that as of yesterday.”
20. Dec. 8, 2020: Meadows responds to a message about efforts to have Republican legislators send alternate slates of electors to Congress, by saying “We are’’ and another such message by saying ‘‘Yes. Have a team on it” (House of Representatives contempt report).
*21. Between the end of Nov. and early to mid-Dec. 2020: The White House Counsel’s Office warns Meadows and Giuliani that the alternate electors’ plan is not legally sound. The participants in the conversations in which the White House Counsel make these statements also include “Giuliani’s associates” and at a later time Republican Members of the House. The White House Counsel attorneys include Pat Cipollone and potentially Patrick F. Philbin. (Mark Meadows aide, Cassidy Hutchinson, transcribed interview with the Select Committee).
Nevertheless, Meadows becomes deeply involved with the development of the scheme. According to testimony provided to the Select Committee, he follows the progress of the scheme closely and has “dozens” of meetings or calls involving the false electors scheme. He also confirms in a text to a former state legislator that Trump electors were planning to cast their votes on December 14 (House Select Committee report: pp. 345-46).
22. Dec. 8, 2020: Following a call, Chesebro writes to Troupis, “Court challenges pending on Jan. 6 really not necessary. … I think having the electors send in alternate slates of votes on Dec. 14 can pay huge dividends even if there is no litigation pending on Jan. 6, and based on final litigation in the States, Biden is still above 270 electoral votes (or, at minimum, is still ahead of Trump, with perhaps one of more States up in the air).” (Penebaker Docs: Chesebro email to Troupis, Dec. 8)
In this email, Chesebro discusses “having the electors send in alternate slates of votes on December 14” as a potential source of “leverage” for the Trump Campaign, which “might be exerted in January to force serious review in Congress of election fraud in various states,” “even if there [was] no litigation pending” at the time.
Troupis agrees with Chesebro’s analysis and directs him to work on implementing his plan, saying, “This is an excellent summary of the end game.” He also tells Chesebro that he had discussed this proposed plan with Senator Johnson, to which Chesebro replies, “Glad you followed up with Senator Johnson. The prospect of extending the fight into January is exciting!”
23. Dec. 8, 2020: Jack Wilenchik, an Arizona attorney working with the Trump Campaign, emails Epshteyn and summarizes communications with Chesebro about “fake” (his term) electoral votes, by saying, “My comment to [Chesebro] was that I guess there’s no harm in it, (legally at least) — i.e. we would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted.” He also writes: “His [Chesebro’s] idea is basically that all of us ( GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law — because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th.” (DOJ indictment: pp. 23-24).
24. Dec. 9, 2020: Chesebro provides a 5-page memorandum to Troupis.
This memo outlines state and federal law that applies to the alternate slate of electors in six different states “if the aim is to ensure that all 79 electoral votes are properly cast and transmitted” for Trump, and it outlines a game plan for the national Trump Campaign.
Three notes:
Note 1. Chesebro states that the alternate slate should meet to cast their votes on Dec. 14 “so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election.”
In other words, Chesebro appears to consider Congress (or perhaps the President of the Senate VP Pence) can recognize the alternate slates even if courts and state legislatures do not.
Note 2. Chesebro relies on the 1960 Hawaii example but he does not state that the slate of electors for Kennedy were ultimately certified by the Governor before the congressional vote on January 6. Chesebro states:
Note 3. Chesebro warns that the laws of Georgia and Pennsylvania make the alternate electors plan “somewhat dicey” in those states, because the Governor’s approval is required for any substitution for an absent elector. He writes that it is accordingly, “imperative” to try to avoid any absences. He also warns that Nevada is “extremely problematic,” because the law requires the Secretary of State’s presence for the electors’ vote to be valid.
In his email transmitting the memo to Troupis, Chesebro writes, “what we need now are accurate lists of the Trump-Pence electors in all six States. With that information, I can draft papers, similar to those we now have for Wisconsin, ready to be signed in the other 5 States (subject to careful review by key officials in those States).” (Penebaker docs: Troupis email to Chesebro, Dec. 9) Troupis replies with one word. “Excellent.”
25. Dec. 9, 2020: On the same day, Epshtyen responds to Troupis’s forwarding of Chesebro’s legal memos, asking, on behalf of Giuliani, if Troupis can prepare “a sample elector ballot for Wisconsin” and, if yes, also for “PA, Georgia, Michigan, AZ, Nevada, and New Mexico.” Troupis asks Chesebro if he is able to do this; Chesebro responds, “Oh absolutely!” (Penebaker docs: Troupis email to Chesebro et al., Dec. 9)
26. Dec. 10, 2020: Troupis connects Chesebro to Epshteyn and Clark and directs Chesebro to coordinate his efforts with them, writing, “Please talk directly with Boris and others on the Electors … I would suggest Boris/Justin Clark set a conference call among the lawyers/others who will handle their respective States where you can walk them through what they must do. There is not time for multiple calls.” (Penebaker docs: Troupis email to Chesebro, Epshteyn, and Clark, Dec. 10). Chesebro follows up and offers to prepare certificates for electors in the other contested states. (Penebaker docs: Chesebro email to Epshteyn and Clark, Dec. 10)
Note 1: Justin Clark testified that he became aware of Chesebro’s work because of Troupis. (Clark congressional deposition: pp. 113-114). He also said that, by December 14, he was convinced that this plan was not “legal,” “appropriate,” or “the right thing to do.” (Id. at 116). [But see Note 2 under entry for Dec. 11, 2020, for evidence that Trump Campaign lawyers remained involved in the scheme.]
27. December 10, 2020: Troupis forwards draft elector certificates prepared for Wisconsin by Wisconsin Republican Party officials to Chesebro and asks him to “please review.” (Penebaker docs: Troupis email to Chesebro, Dec. 10). Chesebro edits these certificates and sends them back to Troupis and notes, “I plan to adapt it for the other states.” These drafts describe the Trump electors as “being the duly elected and qualified Electors,” without any qualifying language. (Penebaker docs: Chesebro email to Troupis and Schimming, Dec. 10).
That evening, Chesebro also speaks with Giuliani, whom he says was “focused on doing everything possible to ensure that all the Trump-Pence electors vote on Dec. 14.” Chesebro also emails Troupis: “Just wanted you to know that the national people are totally on board with your push for the electors to vote!!” (Penebaker docs: Chesebro email to Troupis, Dec. 10).
At the same time, Chesebro reaches out to Republican officials and elector candidates in five other contested states: Arizona, Georgia, Michigan, Nevada, Pennsylvania. Over the next several days, Chesebro communicates with contacts in these states to set up false elector votes on December 14. His letters include similar statements to the effect of “Several people with the Trump campaign, including Justin Clark and Nick Trainer, supplied your contact info and asked me to help coordinate with the other 5 contested States.”
28. UNDATED: “At the president’s direct request, the RNC assisted the campaign in coordinating this effort.” the House Select Committee counsel stated in reference to an [undated] phone call with Trump, Eastman, and Ronna Romney McDaniel, chairwoman of the Republican National Committee. McDanied testified that on a call with Trump and Eastman, Trump turned the call over to Eastman who “talk[ed] about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the dates.” She said she understood “the campaign did take the lead and we just were helping them in that role” (Transcript of Day 4, January 6 Committee Hearings; McDaniel transcript pp. 12-13).
29. Dec. 11, 2020: According to testimony before the House Select Committee, the Trump Campaign legal team* tries to step away from the effort to ensure that the false electors cast their votes. Nevertheless, the scheme continued under Giuliani’s direction, with Chesebro as his designated point person. According to Campaign official Josh Findlay, Trump makes clear that “Rudy was in charge of this and Rudy was executing what he wanted,” with Chesebro’s memos being “the justification for why Rudy and Ken were going to keep going forward with this stuff.” (House Select Committee report: pp. 349-350).
As they took full control of this effort, Chesebro suggests to Jack Wilenchik that he file a petition for certiorari in the Supreme Court to review Trump’s loss in Arizona, which the Department of Justice calls a “pretext to claim that litigation was pending in the state, to provide cover” for the meeting of the fraudulent electors there. (DOJ indictment: p. 24).
Wilenchik himself appeared to agree with this assessment, saying, “Also just FYI – I recall now that there was a rush to file our petition in order to give legal ‘cover’ for electors in AZ to ‘vote’ on the 14th . . .” (Arizona indictment: p. 26).
Note 1. The Department of Justice has also called the Trump Campaign’s litigation in New Mexico, filed just minutes before the Dec. 14th deadline, a “pretext.” (DOJ indictment: pp. 25-26).
Note 2. Despite this testimony, there is evidence to suggest that Trump Campaign officials, like Matt Morgan and Mike Roman, remained involved in the false electors scheme until the eve of January 6, coordinating with Chesebro and others to ensure that the false votes could be delivered. (e.g., Penebaker docs: Chesebro email to Roman and Morgan, Jan. 4).
30. By Dec. 11, 2020: An admission of involvement in a footnote in Trump’s court filing an emergency petition in Wisconsin.
Two notes:
Note 1. The petition describes the electors certifications as based on the contingency of a “later determination” that they are the duly appointed electors for their state. However, the Trump campaign pressured (unsuccessfully) the Pennsylvania false electors to drop any reference to such a caveat in their certification document (see below).
Note 2. In reference to a “later determination,” the petition does not say determined by whom. It leaves open that the determination will be made by state legislatures or Congress/the President of the Senate VP Pence, which would accord with the Chesebro and Eastman memos.
31. Dec. 13, 2020: Chesebro sends an email to Giuiliani which he states was requested by someone [whose name is redacted in court records] on Giuliani’s behalf.
The memo outlines Chesebro’s arguments for why Pence as the President of the Senate could claim the authority to count the electoral votes “including making judgments about what to do if there are conflicting votes.”
He provides a “chronology of how things could play out, if there’s a serious effort to employ the argument” that the President of the Senate has this power. His chronology includes the President of the Senate “opens the two envelopes from Arizona, and announces that he cannot and will not, at least as of that date, count any electoral votes from Arizona because there are two slates of votes, and it is clear that the Arizona courts did not give a full and fair opportunity for review of election irregularities, in violation of due process.”
In a breathtaking passages that lack any foundation, Chesebro writes, ““Unless by then the Supreme Court has taken the case and rejected it on the merits, the President of the Senate can make his own judgment that the Arizona proceedings violated due process, so he won’t count the votes in Biden’s column.”
[Chesebro will later forward this email to Eastman on Jan. 2.]
That same day, Chesebro also sends an email to Mike Roman, a senior staffer for the Trump Campaign, attaching draft certificates for the Trump electors in New Mexico and says that he had “added the new qualifying language at the start of the certificate [sic]. Might be good to have it added in all states.” (Penebaker docs: Chesebro email to Roman and Findlay, Dec. 13)
The suggested change indicated that the Trump-Pence electors were casting their votes “on the understanding that it might be later determined that we are the duly elected and qualified electors.” (Penebaker docs: Chesebro email to Roman and Findlay, Dec. 12).
32. First two weeks of Dec. 2020: “Eastman reached out to sympathetic state legislators in Pennsylvania, Georgia, and Arizona, urging them to decertify Biden electors and certify alternate Trump electors,” Judge Carter wrote in a March 28, 2022 order.
33. First two weeks of Dec. 2020: Giuliani and Trump Campaign officials are directly involved in orchestrating the plan across states, according to media reports.
CNN report:
“Trump campaign officials, led by Rudy Giuliani, oversaw efforts in December 2020 to put forward illegitimate electors from seven states that Trump lost, according to three sources with direct knowledge of the scheme.
The sources said members of former President Donald Trump’s campaign team were far more involved than previously known in the plan, a core tenet of the broader plot to overturn President Joe Biden’s victory when Congress counted the electoral votes on January 6.
Giuliani and his allies coordinated the nuts-and-bolts of the process on a state-by-state level, the sources told CNN. One source said there were multiple planning calls between Trump campaign officials and GOP state operatives, and that Giuliani participated in at least one call. The source also said the Trump campaign lined up supporters to fill elector slots, secured meeting rooms in statehouses for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that were ultimately sent to the National Archives.”
In addition: “It was Rudy and these misfit characters who started calling the shots,” a former Trump campaign staffer told CNN.
In addition: “Both [fake electors] Maddock from Michigan and DeMarco from Pennsylvania have said they were in direct contact with members of the Trump campaign.”
Note 1: On December 10, Chesebro contacts a Trump-Pence elector in Michigan to tell her about the alternate elector plan and offers his help with “logistics of the electors … hopefully joining in casting their votes on Monday.” He later sends his Nov. 18 and Dec. 9 memos, along with draft certificates. (Penebaker docs: Chesebro email to Sheridan, Dec. 10)
Washington Post report:
“The Trump electors gathered in plain sight, assisted by campaign officials and Trump attorney Rudolph W. Giuliani, who said publicly that the rival slates were necessary and appropriate. Internally, Giuliani oversaw the effort, according to former campaign officials and party leaders.”
“The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.
The campaign also worked to find replacements for the electors who were unable to participate, or unwilling.”
34. UNDATED: A false elector from Michigan implicates the Trump Campaign. Meshawn Maddock, co-chair of the Michigan Republican Party, says in recorded remarks: “We fought to seat the electors. Um, the Trump campaign asked us to do that — under a lot of scrutiny for that today.”
35. Dec 13, 2020: Trump Campaign election operations director for Georgia, Robert Sinners sends an email instructing Republicans planning to cast electoral college votes for Trump in Georgia to operate in “complete secrecy.” “Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” Sinners writes. According to the Washington Post: Sinners’ “email went on to instruct the electors to tell security guards at the building that they had an appointment with one of two state senators. ‘Please, at no point should you mention anything to do with Presidential Electors or speak to the media,’ Sinners continued in bold.”
“In a statement, Sinners said he was working at the direction of senior campaign officials and Georgia Republican Party Chairman David Shafer, who served as a Trump elector in the state,” the Post said.
36. Runup to Dec. 14, 2020: Trump Campaign officials get into a dispute with some of the potential electors over whether the certificates should include caveats, with Trump Campaign officials pressing the false electors not to include any caveats about whether they will be duly authorized only upon a future determination.
CNN: “One of the pro-Trump electors from Pennsylvania, Sam DeMarco, told CNN there was a last-minute dispute, where the state’s GOP electors pushed Trump campaign officials to add legal caveats to the fake certificate to say they were only electors-in-waiting, if Trump’s legal challenges prevailed.”
CNN also reports:
“Demarco, who was one of the state’s pro-Trump electors, and is the chairman of the Allegheny County Republican Committee, told CNN he and other alternate electors signed the certificate at the Trump campaign’s request but first demanded the language be changed to make clear it was not intended to contest the will of voters in that state who voted for Biden.
The hedging language was included at the last moment as the Trump campaign had concerns, and questioned whether the change was appropriate in the immediate lead-up to December 14, according to a Trump campaign staffer with knowledge of the matter.
Ultimately the Trump campaign acquiesced. But the internal debate shows that even some of Trump’s strongest allies were concerned about the attempts to overturn the 2020 election.”
Lancaster News also reported on the dispute and that “Trump campaign lawyer James Fitzpatrick, of Philadelphia, pitched the declaration to electors as a way of preserving Trump’s legal rights should his election challenges prevail, DeMarco said.”
Note 1: Republican officials in Pennsylvania also push Chesebro to add contingency language to the certificate for their state, and say that they want to support President Trump in “any lawful way.” (Penebaker docs: Chesebro email to Morgan, Dec. 12)
Note 2: There are also similar concerns in Arizona. According to Chesebro, two electors were “concerned it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding that might, eventually, lead to the electors being ratified as the legitimate ones.” (Penebaker docs: Chesebro email to Wilenchek, Giuliani, and Findlay, Dec. 11)
Note 3: In text messages with Chesebro, Roman resists the idea that qualifying language should be added to more states, saying “fuck these guys,” after a call regarding the Pennsylvania electors. (Penebaker docs: Chesebro texts with Roman, at p. 2) According to the federal indictment against Trump, Chesebro was also warned by a Trump Campaign official not to add qualifying language to other draft electoral certificates because of a fear that it would “snowball.”
Note 4: This qualifying language was not included in the draft certificates sent by Chesebro to Troupis on December 10.
37. Prior to Dec. 14, 2020: A subpoena for Chesebro issued by the Fulton County grand jury alleged that Chesebro “worked with the leadership of Georgia Republican Party, including Chairman David Shafer,” “drafted at least two memoranda in support of this plan, which were provided to the Georgia Republican Party,” “provided template Microsoft Word documents” to be used by the party during the planned Dec. 14 alternate certification; and “worked directly” with Giuliani in coordinating and executing the plan. (See also Acts 47-52, 58-61, 64, 69-72 of Fulton County Georgia Indictment.)
Note 1: Emails from Chesebro show that he sent along his memos and draft elector certificates for use in Georgia. (Penebaker docs: Chesebro email to Shafer et al., Dec. 10)
38. Prior to Dec. 14, 2020: As the campaign’s litigation losses mounted, three of its lawyers, Justin Clark, Matt Morgan and Josh Findlay, claimed to have withdrawn or decided not to participate in the alternate electors scheme (Transcript of Day 4, January 6 Committee Hearings).
39. Prior to Dec. 14, 2020: The decision of Trump campaign lawyers not to participate is not revealed to state officials and other campaign staff. The former Wisconsin Republican Party chair testified that he was told the alternate electors’ votes would “only count if a court ruled in our favor,” and he testified otherwise he and others would not have participated if they knew the Trump team would be “using our electors in ways that we weren’t told about.” (Hitt transcript: pp. 50-1).
[But see Note 2 under entry for Dec. 11, 2020, for evidence that Trump Campaign lawyers remained involved in the scheme.]
40. Prior to Dec. 14, 2020: The January 6 Committee reviewed documents “indicat[ing] that instructions were given to the electors in several states that they needed to cast their ballots in complete secrecy,” and “[o]ne group of fake electors even considered hiding overnight to ensure that they could access the state capitol as required in Michigan.” In one state, “the fake electors even asked for a promise that the campaign would pay their legal fees if they got sued or charged with a crime.” (Transcript of Day 4, January 6 Committee Hearings).
41. Dec. 13, 2020: The Trump Campaign prepared a statement that declared that “the only prudent course was to have the President’s electors vote in these places.” Texting about the draft release, Justin Clark said, “Now, I am not sure what Rudy is telling the president on this stuff so I’m not sure what his expectations are … Here’s the thing[,] the way this has morphed it’s a crazy play so I don’t know who wants to put their name on it.” In the same text thread, White House lawyer Eric Herschmann responded, “certifying illegal votes.” Trump Campaign spokesman Tim Murtagh, who had drafted the release, eventually said he was “not comfortable putting the statement out … I can’t stand by it. From the looks of it, neither can any of you.” Clark and Herschmann agreed, with Clark saying that “Rudy, Boris and Jenna” should put their names on the release instead. (Arizona Indictment, p. 43-44)
42. Dec. 14, 2020: The false Trump electors meet in seven states to issue their certificates, which are later published by American Oversight as a result of a FOIA request to the National Archives.
In five of the states, the documents declare that the signatories are the “duly elected and qualified Electors” of their state (Arizona, Georgia, Michigan, Nevada, and Wisconsin)
The two other states include a caveat.
The New Mexico caveat states:
“WE, THE UNDERSIGNED, on the understanding that it might later be determined that we are the duly elected and qualified Electors”
The Pennsylvania caveat states:
“WE, THE UNDERSIGNED, on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors”
43. Dec. 14, 2020: The Pennsylvania Republican Party issues a press release which states in its opening two lines:
“At the request of the Trump campaign, the Republican presidential electors met today in Harrisburg to cast a conditional vote for Donald Trump and Mike Pence for President and Vice President respectively.
‘We took this procedural vote to preserve any legal claims that may be presented going forward,’ said Bernie Comfort, Pennsylvania Chair of the Trump campaign. ‘This was in no way an effort to usurp or contest the will of Pennsylvania voters.’” (emphasis added)
44. Dec. 14, 2020: Troupis and Chesebro had also coordinated on a draft statement they planned to release on December 14, following the meeting of electors in Wisconsin, in which Troupis would have said, “I have advised the Republican Party of Wisconsin to convene a separate Republican electors’ meeting and have the Trump-Pence electors cast their votes at the Wisconsin State Capitol on December 14.” (Penebaker docs: Troupis draft statement)
However, the statement never went out due to instructions from the Trump Campaign; on the morning of Dec. 14, Chesebro forwards an email to Troupis from Trump Campaign officials discussing how “DJT staff in state were instructed not to do any media advisory or post-event press release.” In forwarding the email, Chesebro writes, “FYI – no press comments.” (Penebaker docs: Chesebro email to Troupis and Schimming, Dec. 14)
45. Dec. 14, 2020: Stephen Miller, a Trump Campaign official says on Fox News: “As we speak today an alternate slate of electors in the contested states is going to vote and we are going to send those results up to Congress. This will ensure that all of our legal remedies remain open.” That means that if we win these cases in the courts, then we can direct that the alternate slate of electors be certified.”
46. Dec. 14, 2020: Chesebro attends the meeting of the false electors in Wisconsin. During the meeting, he sends multiple texts to Troupis keeping him apprised of the events at meeting, which occurred at the State Capitol, including saying, “WI meeting of the *real* electors is a go!!!” and sending a picture of the meeting itself. Troupis responds to the picture with a thumbs-up emoji. (Penebaker docs: texts, pp. 40-42).
47. Dec. 14, 2020: Giuliani admits role on Steve Bannon show but says it is designed for the contingency “if any of the campaign’s remaining challenges succeeded”:
Stephen K. Bannon quizzed Giuliani that same day on his podcast, referring to the effort as “something Rudy and the team have worked on.” Bannon asked: “Why are you sending electors? … Why is the Trump campaign sending its own slate of electors to these state capitals?”
Giuliani said that based on his team’s legal research and “advice we‘ve gotten from a number of professors,” they decided to act “out of an excess of caution” to preserve the chance for the votes to be counted for Trump if any of the campaign’s remaining challenges succeeded.
48. Dec. 14-15, 2020:
Senior Trump Administration officials urge an end to election challenges. Secretary of Labor Gene Scalia testified that he told Trump in mid-December, when the electors had voted, the legal processes were exhausted and it was time to “concede the outcome.”
White House Deputy Press Secretary Judd Deere, testified, “I told him that my personal viewpoint was that the Electoral College had met, which is the system that our country is set under to elect a President and Vice President. And I believed at that point that the means for him to pursue litigation was probably closed.” Trump’s response? “He disagreed,” Deere said.
Attorney General Bill Barr testified that “December 14th was the day that the states certified their votes and sent them to Congress. And in my view, that was the end of the matter.”
White House Counsel Pat Cipollone testified that Trump should have conceded the election by the time Sen. Mitch McConnell confirmed the election was over on December 15, 2020. “I believe he should concede the election at a point in time? Yes, I did. I believe Leader McConnell went on to the floor of the Senate, I believe in late December, and basically said, you know, the process is done. You know, that would be in line with my thinking on these things,” Cipollone testified (Transcript of Day 7, January 6 Committee Hearings).
49. Republicans who refused to participate in the false elector plan spoke to the Washington Post stating their reasons for their decision (in an article published in January 2022).
Among the electors who declined to participate was Pennsylvania GOP Chairman Lawrence Tabas, an election-law expert who had defended Trump in 2016 against a recount push by Green Party candidate Jill Stein.
“While Lawrence was originally selected to be an elector by the Trump campaign, he did not serve as an elector because Joe Biden won the election and it was Biden’s electors that were certified,” Vonne Andring, a senior adviser to the state party, said in a statement to The Post.
Andring also said that it was the presidential campaign that drove the process. The party, she said, “did not select electors, nor did it coordinate elector events and communications.”
In Georgia, John Isakson, an original Trump elector, told The Post that he bowed out because he did not want to attend what he had perceived as a “political rally.” …
… “We have a process for certifying the election. We have a process for challenging the election. The challenges failed, so I wouldn’t have participated in something that was going against all of that.”
Former congressman Tom Marino of Pennsylvania, another original Trump elector, had been among the first members of Congress to back Trump’s presidential bid in 2016. But he, too, balked at casting an electoral vote for Trump in a state where Biden was the certified winner. Earlier in December, then-Attorney General William P. Barr said he had not seen widespread fraud that could have upended the election.
“I was disappointed in the election,” Marino said in an interview, “but as a former prosecutor, when the attorney general says he’s not finding anything here, that’s good enough for me.”
Marino, who retired in 2019, added: “I’m a constitutionalist and have always been a constitutionalist. … I believe in the rule of law and whatever the courts determined. I’m not going to jump on a bandwagon to say that I know better than the courts.”
50. Dec. 15, 2020: Chesebro provides the false electors in Wisconsin emailed instructions on how to transmit their votes. (Penebaker docs: Chesebro email to Hitt, Jefferson, and Terrill, Dec. 15).
51. Dec. 16, 2020: Sen. Mike Lee (R-UT) texts Meadows four messages in a row:
“I have grave concerns with the way my friend Ted is going about this effort.”
“This will not inure to the benefit of the president.”
“Everything changes, of course, if the swing states submit competing slates of electors pursuant to state law.”
“But if not, this could help people like Ted and Josh to the detriment of DJT.”
Later Sen. Lee texts:
“I don’t think the president is grasping the distinction between what we can do and what he would like us to do. Nor do I think he’s grasping the distinction between what certain members are saying that sound like they could help him, but would really hurt him. He’s got a very real opportunity for a win in 2024. That opportunity could be harmed in multiple ways this effort.”
“Again, all of this could change if the states in question certified Trump electors pursuant to state law. But in the absence of that, this effort is destined not only to fail, but to hurt DJT in the process.”
And later:
“I don’t purport to know who fits into which category. I know only that this will end badly for the president unless we have the Constitution on our side. And unless these states submit new slates of Trump electors pursuant to state law, we do not.”
“We should chat then. I’d love to be proven wrong about my concerns. But I really think this could all backfire badly unless we have legislatures submitting trump slates (based on a conclusion that this was the proper result under state law). Even setting aside constitutional concerns, this will be harmful to the president if we don’t channel this effort properly. We simply have no authority to reject a state’s certified electoral votes in the absence of a dueling slates, with the Trump slate coming from a state legislative determination.”
52. Dec. 16, 2020: Troupis and Chesebro meet with Trump in the Oval Office. During this meeting, according to Chesebro, Troupis told Trump that there was “zero hope” for winning Wisconsin. In Chesebro’s accounting, Trump asks him “four or five questions” during this meeting, and Chesebro summarizes his Nov. 18 memo where he identified January 6 as the “real deadline” for determining Wisconsin’s electoral votes.
N.B. As analysis of the meeting suggests, “it is difficult to imagine [Chesebro] briefed candidate Trump only on the outmoded plan” in the Nov. 18 memo, since the electors had already met and cast their fraudulent slates two days prior.
Following the meeting, Chesebro and Troupis travel back to Wisconsin together. (Penebaker docs: texts, p. 44).
53. Dec. 17, 2020: Former White House Press Secretary Kayleigh McEnany mentions on Fox News that there is an “alternate slate of electors voted upon that Congress will decide in January” in multiple states.
54. Dec. 18, 2020: Troupis asks Chesebro to keep the contents of their meeting a secret, saying, “Just a reminder: Reince [Priebus] was very explicit in his admonition that nothing about our meeting with the President can be shared with anyone. The political cross-currents are deep and fast and neither you or I have any ability to swim through.” (Penebaker docs: Chesebro email to Troupis, Dec. 18).
55. Dec. 19, 2020: Troupis texts Chesebro about President Trump’s first call for protests in D.C. on January 6, saying, “Wow. Based on 3 days ago, I think we have a unique understanding of this.” (Penebaker docs: texts, p. 45)
56. Dec. 19, 2020: Eastman emails someone with whom he had exchanged multiple emails following the election. Eastman writes: “As for the Legislatures–not a one has acted. Electors did in 7 states, but unless those electors get a certification from their State Legislators, they will be dead on arrival in Congress.”
57. Dec. 21, 2020: Troupis is connected with Eastman and was told that the Trump Campaign “wants us to work together with professor eastman [sic] to file an Article II cert petition from Wisconsin to scotus [sic], thanks.” Troupis responds by looping in Chesebro. (Penebaker docs: Troupis email to Eastman, Chesebro, et al., Dec. 22)
58. On and around Dec. 22, 2020: Eastman and other attorneys discuss avoiding the courts due to the likelihood they will lose. Judge Carter’s June 2022 opinion states:
“In these emails, Dr. Eastman and his colleagues discuss how to frame their legal filings in light of what they considered a near-zero chance of success in the D.C. courts.
…
In the fifth email, dated December 22, 2020, an attorney … considers whether to bring a case that would decide the interpretation of the Electoral Count Act and potentially risk a court finding that the Act binds Vice President Pence. Because the attorney concluded that a negative court ruling would ‘tank the January 6 strategy,’ he encouraged the legal team to avoid the courts.”
59. Dec. 23, 2020: Eastman writes in an email to Trump campaign staffer Epshteyn that even though the false electors had not been approved by state authority, “[t]he fact that we have multiple slates of electors demonstrate[sic] the uncertainty of either. That should be enough.” He says that it would be better for Congress to “just act boldly and be challenged.” (Penebaker docs: Eastman email to Chesebro and Troupis, Dec. Dec. 23)
To that end, Eastman also attaches a memo entitled “January 6 scenario” to Trump Campaign officials, which lays out a scenario in which Vice President Pence uses the fact that seven states have competing slates of electors as a reason not to count electors from those states, thereby declaring Trump the Electoral College victor. (Penebaker docs: Eastman email to Epshteyn and Chesebro, Dec. 23). Chesebro helped edit this memo, and was copied on the email which attached it. Eastman’s cover note says, “I’m fine with all of Ken’s edits. … Here’s the final.” (Penebaker docs: Eastman email to Epshteyn and Chesebro, Dec. 23).
60. Dec. 24, 2020: In an email exchange with Eastman, Troupis, and others regarding the possibility of appealing the Trump Campaign’s failed challenge to Wisconsin’s election to the Supreme Court, Chesebro writes, “I think the odds of action before Jan. 6 will become more favorable if the Justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.” (Penebaker docs: Chesebro email to Eastman, Troupis, et al., Dec. 24).
61. Dec. 27, 2020 – Jan. 2021: Troupis asks Chesebro to work on a “step by step, easy to understand, non-lawyerly process for the Senators/Congressmen and VP to follow on the 6th.” Chesebro follows up a few days later, emailing Troupis and Ephsteyn potential strategies for a filibuster in the Senate during the January 6 Joint Session. (Penebaker docs: Chesebro email to Troupis and Epshteyn, Dec. 30).
Troupis continues to solicit Chesebro’s advice about what might happen on January 6, and Chesebro sends him messages responding to his questions. (Penebaker docs: texts, pp. 61-77).
62. Dec. 27 – Dec. 29, 2020: Chesebro exchanges multiple messages with the founder of far-right conspiracy newsite, Gateway Pundit, and presses for more public pressure on Pence. “It would help to publicize that if Pence claims the power to resolve disputes about the electoral votes on Jan. 6, he’d simply be doing what [Thomas] Jefferson did,” he writes. Two days later, Chesebro mentions that he had reserved a block of rooms at the Trump International Hotel for Jan. 6.
63. Dec. 28, 2020: Jeffrey Clark’s draft “Georgia Proof of Concept” letter relies on the existence of false alternate electors in an effort to overturn the results in Georgia and elsewhere.
Clark writes, “The Department believes that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr, and a separate slate of electors supporting Donald J. Trump, gathered on that day at the proper location to cast their ballots, and that both sets of those ballots have been transmitted to Washington DC to be opened by Vice President Pence.”
As the Washington Post described the draft letter, “Clark falsely implied that the Justice Department believed the Trump electors were valid rivals to those put forward by Georgia and other states for Biden.”
White House Counsel Pat Cipollone told Trump and Clark in a White House meeting with other senior DOJ officials, “That letter is a murder-suicide pact. And it will damage anyone and anything that it touches” (former Acting Deputy Attorney General Richard Donoghue, transcribed interview with Senate Judiciary Committee).
64. Dec. 29, 2020: White House Special Assistant and Oval Office Coordinator emails a draft Supreme Court brief to Justice Department senior officials which would have the United States petition the Supreme Court to contest the election results. The Justice Department rebuffs the idea. As Steven Engel, who was head of the Justice Department’s Office Legal Counsel, testified before the Select Committee:
“The lawsuit would have been untimely. The states had chosen their electors. The electors had been certified. They’d cast their votes. They’d been sent to Washington, DC. Neither Georgia nor any of the other states on December 28th, or whenever this was, was in a position to change those votes. The — essentially the election had happened. The only thing that hadn’t happened was the formal counting of the votes.
And so obviously, you know, the person who drafted this lawsuit didn’t really understand in my view, you know, the law and or how the Supreme Court works.”
Note 1: Meanwhile, Trump Campaign officials continue to consult with Troupis and Chesebro regarding the drafting of a cert petition. (Penebaker docs: Troupis email to Clark, Morgan, and Bock, Dec. 26).
65. Dec. 31, 2020 – Jan. 3, 2021: Trump and Clark try to pressure acting Attorney General Rosen to sign and send the Proof of Concept letter. These bullet points are from a previous Just Security article:
- Dec. 31, 2020 or Jan. 1, 2021: Clark tells Rosen that Trump wants an answer from Clark by Monday (Jan. 4, 2021) about whether Clark is willing to be considered to replace Rosen as Acting Attorney General. Clark expresses that he is not satisfied with Donoghue and Rosen’s position on his letter to the Georgia legislature, and Clark says that he will decline the position of Acting Attorney General if Rosen follows Clark’s suggestions. Rosen again refuses to send Clark’s letter to the Georgia legislature (Rosen testimony, pp. 141, 144-46).
- Jan. 3, 2021: Clark tells Rosen that Trump has offered Clark the position of Acting Attorney General and that Clark has accepted. Clark says that the schedule has moved up, and he will replace Rosen this same day (Rosen testimony, pp. 158-59).
- Jan. 3, 2021: At a White House meeting between Trump, senior DOJ officials, and senior White House officials, Trump considers installing Clark as Acting Attorney General and sending Clark’s proposed letter. Donoghue and head of the Office of Legal Counsel Steve Engel tell Trump that all of the Assistant Attorneys General will resign if Trump replaces Rosen with Clark, and they warn that other DOJ officials may also resign “en masse.” Trump entertains the idea for most of the duration of the two to three hour meeting, but ultimately decides against installing Clark.
In their Senate Judiciary Committee transcribed interviews, “Rosen and Donoghue told us that by this point, Clark’s proposed letter and his potential role as Acting Attorney General were intertwined” (Senate Judiciary Committee report, citing Donoghue Transcript, p. 152; Rosen Transcript, p. 49).
66. Dec. 31, 2020: Jenna Ellis, a member of Giuliani’s legal team, writes a 1-page memorandum addressed to President Trump. It states that Pence should not accept votes in which “six states currently have electoral delegates in dispute,” on the ground that Pence cannot exercise his “responsibility [to open all electoral votes from the electors chosen in the manner prescribed by the state legislatures] if he does not know which ones were so chosen.” She writes that Pence should ask those legislatures to meet and inform him which to count, and if they do not do so in time, their state electors will not be counted (see also Politico reporting).
67. Jan. 1, 2021: Chesebro sends an email to Eastman and Epshteyn with the subject, “Filibuster talking points,” in which he advocates a strategy where Republican Senators could launch a filibuster during debates of contested states’ electoral votes, facilitated by Vice President Pence. Chesebro’s email offers examples of how Republicans in Congress could undermine the Electoral Count Act and “create delay and pressure for further action.” (Penebaker docs: Chesebro email to Eastman and Epshteyn, Jan. 1)
In another email that day to Troupis, Eastman, and others, Chesebro says, “I’ve always assumed the only way the Court will act on one or more states is if during the count it is made clear – by Pence, and/or a filibuster in the Senate that can’t be broken – that Congress will be unable to act unless either the Court of the state legislature addresses claim re the state.” (Penebaker docs: Chesebro email to Troupis, Eastman, et al., Jan. 1)
68. Jan. 2, 2021: Trump, Giuliani, and Eastman’s conference call with 300 state legislators. From Barbara McQuade’s Just Security article:
Later on Jan. 2, 2021, Trump and attorneys Rudolph Giuliani and John Eastman conducted a Zoom conference call with 300 legislators from swing states won by Biden. According to Michigan State Sen. Ed McBroom (R), who participated in the call, the Trump team urged the legislators to overturn the choice of voters in their states, but provided no evidence of voter fraud. As McBroom reported: “I was listening to hear whether they had any evidence to substantiate claims” of significant voter fraud that could change the results in Michigan.” “(T)he callers did not provide additional information, he said, and he did not support a delay in the electoral vote count.”
69. Jan 2, 2021 at 7:43pm: Chesebro forwards to Eastman his Dec. 13 email to Giuiliani.
70. Jan. 3, 2021: Eastman writes his 6-page memo. The memo states: “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”
71. Jan. 4, 2021: President Trump holds an Oval Office meeting with Eastman, Pence, Marc Short, and Greg Jacob. Barbara McQuade’s earlier Just Security article summarizes the publicly available information on the meeting (see L in her model prosecution memo; see also Greg Jacob’s and others’ testimony in Select Committee’s third June hearing).
72. Jan. 4, 2021: Eastman calls Rusty Bowers, the Republican speaker of the Arizona House, asking that the state legislature “de-certify the electors” claiming the body has “plenary authority to do so” under Article II. Bowers refuses, stating the action is unprecedented and would violate his oath to uphold the Constitution and the law, but Eastman says, “Just do it and let the court sort it out” (Transcript of Day 4, January 6 Committee Hearings).
73. Jan. 4, 2021: The Trump Campaign requested in texts to Wisconsin Republican Party officials for someone to transport the fake electors’ documents to Washington (Transcript of Day 4, January 6 Committee Hearings).
74. Jan. 4, 2021: At 8:51pm, Chesebro sends another email to Eastman that resends his Dec. 13 email to Giuliani and appears to have Chesebro’s Nov. 18 memo as an attachment (Penebaker docs: Chesebro email to Eastman, Jan. 4).
75. Jan. 4, 2020: Sen. Mike Lee (R-UT) texts with Meadows:
From Meadows to Sen. Lee:
“Apparently, he was told that you came out with a letter against the electoral objections. I told him that you were being very helpful. Bad intel”
From Sen. Lee to Meadows:
“I’ve been spending 14 hours a day for the last week trying to unravel this for him. To have him take a shot at me like that in such a public setting without even asking me about it is pretty discouraging.”
From Meadows to Sen. Lee:
“I pushed back. It wasn’t in the prepared remarks. So sorry. He will call”
From Sen. Lee to Meadows:
“It’s not your fault. But I’ve been calling state legislators for hours today, and am going to spend hours doing the same tomorrow. I’m trying to figure out a path that I can persuasively defend, and this won’t make it any easier, especially if others now think I’m doing this because he went after me. This just makes it a lot more complicated. And it was complicated already. We need something from state legislatures to make this legitimate and to have any hope of winning. Even if they can’t convene, it might be enough if a majority of them are willing to sign a statement indicating how they would vote.”
From Sen. Lee to Meadows:
“And I’ve been working on doing that all day today.”
From Sen. Lee to Meadows:
“But now, my ability to do that with credibility is impaired.”
From Meadows to Sen. Lee:
“So very sorry. I told him that you and I have been working it hard on his behalf.”
76. January 4, 2021: Chesebro emails with Trump Campaign counsel Matthew Morgan and senior official Mike Roman discussing how they might be able to get the false certificates to Vice President Pence in time for their use during the Joint Session. Chesebro suggests that they reach out to Troupis and “have him check immediately with Ron Johnson and see if the courier can deliver the documents to a Johnson staff member, who will then take it to Pence’s Senate office.” (Penebaker docs: Chesebro email to Roman and Morgan, Jan. 4).
77. “Pence’s chief of staff, Marc Short, told The Post that Giuliani and his associates forwarded letters [to Pence] from individual state legislators objecting to Biden’s electors and arguing the Trump electors should be recognized instead. Short and Pence’s legal team reviewed the unsolicited letters but were not persuaded there was any legal basis to accept Trump electors who had not been certified by their states, Short said” (Washington Post).
78. Jan. 5, 2021: Chesebro emails with Mike Roman and a junior Wisconsin Republican staffer, Alesha Guenther, who was flying to D.C. with false certificates. Guenther would then hand off these documents to Chesebro. (Penebaker docs: Chesebro email to Roman and Guenther, Jan. 5).
79. Jan. 5, 2021: Eastman meets with Marc Short and Greg Jacob. Barbara McQuade’s earlier Just Security article summarizes the publicly available information on the meeting (see N in her model prosecution memo; see also Greg Jacob’s and others’ testimony in Select Committee’s third June hearing).
80. Jan. 5, 2021: Jenna Ellis, a member of Giuliani’s legal team, writes a second 2-page memorandum addressed to Trump attorney Jay Sekulow. The memo states that “the Vice President should begin alphabetically in order of the states, and coming first to Arizona, not open the purported certification, but simply stop the count at that juncture” on the ground that those electors may have not been properly “ascertained.”
81. Jan. 5. 2021: Vice President Pence’s chief counsel Greg Jacob writes a 3-page memorandum addressed to the vice president explaining that Eastman’s proposal to “skip opening and reading the electoral Certificates for any state for which an alternate but uncertified slate of electors has been submitted” is unlawful. “Professor Eastman acknowledges that his proposal violates several provisions of statutory law” including the Electoral Count Act, the memorandum states.
82. Jan. 5, 2021: That evening, according to video reviewed by CNN, Chesebro attends a rally at Freedom Plaza where prominent Trump surrogates spoke about the need to “stop the steal” the next day. Longtime Trump ally Roger Stone warns the crowd that they are embroiled in a “an epic struggle for the future of this country between dark and light;” Stop the Steal organizer Ali Alexander says, “These degenerates in the deep states are going to give us what we want, or we are going to shut this country down;” conspiracy theorist Alex Jones screams, “It’s 1776!” (House Select Committee report: pp. 537-38).
83. Jan. 6, 2021: In the morning, Rep. Andy Biggs (R-Ariz.) calls Bowers asking for him to support decertification and sign onto a letter to that effect. Bowers again refuses (Transcript of Day 4, January 6 Committee Hearings).
84. Jan. 6, 2021: The House Select Committee found that “[a] staffer for Wisconsin[] Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the joint session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President” alternative electors’ votes from Michigan and Wisconsin. Pence’s aide “unambiguously instructed them not to deliver the fake votes to the Vice President. Even though the fake elector’s slates were transmitted to Congress and the executive branch, the Vice President held firm in his position that his role was to count lawfully submitted electoral votes.”
85. January 6, 2021: At 11:36 a.m., Troupis sends a text message to U.S. Senator Ron Johnson, in which he says, “We need to get a document on the Wisconsin electors to you for the VP immediately. Is there a staff person I can talk to immediately. Thanks Jim T” At 11:42 a.m. Senator Johnson sends Troupis a text connecting him with Sean Riley, whom he identifies as his new chief of staff. (Penebaker docs: Troupis docs, pp. 575-77)
Troupis then texts Chesebro and writes, “I have been on phone w Mike Roman and Senator Johnson and Johnson’s COS to get an original copy of Wi slate to VP. Not sure if u are involved but call Mike to make sure he gets what he needs. Thanks.” Chesebro responds that he had dropped off the original copies to a congressional aide the prior day who, according to him, had “walked it over to the Senate Parliamentarian.” (Penebaker docs: texts, pp. 77-80)
At 12:46 p.m., Senator Johnson texts Troupis again and says, “We have been informed that VP cannot accept any unsealed mail and I cannot hand it to him.” (Penebaker docs: Troupis docs, p. 575)
Troupis texts Chesebro to relay this update. He forwards Senator Johnson’s message and says, “Johnson cannot give the certificate we got to him to the VP because it is not sealed. Someone opened it!” (Penebaker docs: texts, p. 78).
86. Jan. 6, 2021: Vice President Pence reads out the vice presidential script for publicly counting electoral votes after he drafts new language, approved by the congressional parliamentarians, to address the false alternate slate of electors. He states that the certificates introduced will be the ones that “the parliamentarians have advised me is the only certificate of vote from that state, and purports to be a return from the state, and that has annexed to it a certificate from an authority of that state purporting to appoint or ascertain electors.”
87. Jan. 6, 2021:
After the attack on the Capitol began, Pence’s chief counsel Greg Jacob exchanges heated emails with Eastman. In one email, Jacob says, “thanks to your bull—-, we are now under siege.”
At 4:29pm, Jacob emails Eastman: “Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally?” Eastman replies: “He’s been so advised, as you know because you were on the phone when I did it. I should not discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.”
88. January 6, 2021: Throughout this time, Chesebro sends Troupis several messages from on the ground in D.C., including pictures of him in a crowd of President Trump’s supporters on the National Mall. One of these pictures shows Chesebro with conspiracy theorist and Trump ally Alex Jones. Chesebro eventually marches with Jones down to the Capitol and follows him into restricted areas.
In response to Chesebro’s messages, Troupis also sends several encouraging messages to Chesebro, including, “Enjoy the history you have made possible today;” “Well done Ken! History is made!;” and a clapping hands emoji.
At some point in the afternoon, Troupis texts Chesebro, “Tear gas in the Capitol.” Chesebro responds, “I caught a wife [whiff]…Lol.” Chesebro also sends Troupis a picture of himself outside of the Capitol. (Penebaker docs: texts, pp. 78-82).
89. Jan. 10, 2021: An individual (name redacted in court records) emails Eastman asking, “Tell us in layman’s language, what the heck happened with the dual electors? Please?” Eastman responded in full: “No legislature certified them (because governors refused to call them into session), so they had no authority, Alas.”
90. March 28, 2022: In a civil case, a federal district court holds that Eastman and Trump more likely than not engaged in a criminal conspiracy to overturn the election through pressuring Pence to reject the Biden electors in accordance with Eastman’s plans submitted to Trump (Judge David O. Carter decision applying a preponderance of the evidence standard). As noted above, Carter’s subsequent June 2022 opinion states that “Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020.” It also states, “a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump.”