Lawyers for false electors: Nessel's words should spur cases' dismissal

Lansing — Lawyers for two of the 16 false electors who are facing felony charges in Michigan filed motions Tuesday, asking a judge to dismiss their cases based on the words of Democratic Attorney General Dana Nessel.

Nessel told a liberal group last week the false electors had been "brainwashed" and "genuinely" believed that Republican Donald Trump won Michigan's 2020 presidential election, according to a video first reported by The Detroit News.

In July, it was Nessel's office that brought the criminal charges against the 16 Republicans who met inside Michigan GOP headquarters on Dec. 14, 2020, and signed a certificate falsely claiming that Trump had won the state's 16 electoral votes. The move was part of a plan by Trump supporters to challenge his loss to Democrat Joe Biden.

Under state law, the forgery allegations hinge on the idea that the Trump electors had an "intent to defraud."

But in a court filing Tuesday, attorney Kevin Kijewski, who's representing Clifford Frost of Warren, said Nessel's own comments, acknowledging the false electors thought Trump had won, were an "explicit and clear admission" that her office hadn't found the required criminal intent to bring the charges.

"It is hard to imagine a more compelling and unprecedented example of a criminal case that should be dismissed given the actions of the AG," Kijewski wrote in his motion.

Kijewski asked Ingham County District Court Judge Kristen Simmons to dismiss the charges based on "prosecutorial misconduct."

Asked for a response to the motion, Danny Wimmer, spokesman for Nessel's office, said the attorney general's team would respond in court in future filings.

Like Kijewski, lawyer George Brown, who's representing another false elector Mari-Ann Henry of Brighton, also asked the court to dismiss the charges against his client on Tuesday.

Brown noted Nessel's office had previously alleged in an affidavit that the false electors "knew there was no legal reason to create an alternate slate of electors."

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If Nessel understood the false electors believed Trump had won, their actions "could not have been performed with the intent to cheat or deceive anyone," Brown wrote.

"The court must discharge a defendant and dismiss a case upon a finding that probable cause does not exist," Brown wrote in his motion.

Nessel unveiled eight felony charges against each of the 16 false electors on July 18. At the time, she said their actions undermined the public’s faith in the integrity of elections and "also plainly violated the laws by which we administer our elections in Michigan."

With the cases pending in district court, the attorney general participated in a Sept. 18 virtual event with the group Protectors of Equality in Government. The organization had said Nessel's appearance would highlight "the messaging we all use to talk about fake electors and the various indictments, including (former President) Trump."

During the event, Nessel referenced questions about why she hadn't reached deals in order to get some of the false electors to cooperate with her office's prosecution efforts. The reason, she said, was because the people were "brainwashed" and believed Trump won in 2020.

"They legit believe that. They genuinely believe it," Nessel said during her comments, according to the video.

She also told the group the false electors' cases were playing out in Ingham County.

"Ingham County, where Lansing is located, is a very, very Democratic-leaning county," she said.

Kijewski's motion could be debated in court during a previously scheduled Oct. 6 hearing.

cmauger@detroitnews.com