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By Beth LeBlanc
Lansing (The Detroit News) — An Ingham County district judge rejected requests Friday to dismiss charges against two of 16 false electors, ruling that the arguments lawyers made in court were better suited for a later evidentiary hearing in front of a circuit court judge. online news
The lawyers for the 2020 Republican electors had sought summary dispositions based on statements from Michigan Attorney General Dana Nessel and based on elements they argued were missing from the prosecution’s case to prove crimes such as forgery, election law forgery, and uttering and publishing.
But District Judge Kristen Simmons said a dismissal of the case before a preliminary exam would be “inappropriate” and “preemptive.” A preliminary exam is held to decide whether there is enough evidence to show “probable cause” a crime is committed and that a trial should take place in circuit court.
“We don’t even know if they have sufficient facts to determine whether or not a crime was committed,” Simmons said, adding that probable cause is a “low burden” for the prosecution and only requires “more than mere suspicion.”
The Friday hearing came more than two months after Nessel’s office charged 16 false electors in July with eight felony charges each after the Republicans met inside Michigan GOP headquarters on Dec. 14, 2020, and signed a certificate falsely claiming that then President Donald Trump won the state’s 16 electoral votes instead of Democrat Joe Biden.
The hearings were prompted in part by comments Nessel made while speaking to a liberal group during a Septembe webinar. The Democrat told viewers that the electors had been “brainwashed” and “legitimately” believed Trump won Michigan’s 2020 election, in which Biden won by 154,000 votes or nearly 3 percentage points.
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Under state law, the forgery allegations the 16 were charged with in July require an “intent to defraud,” and defense lawyers argued Friday that Nessel’s comments were proof there was not intent to defraud.
George Brown, an attorney for elector Mari-Ann Henry, argued that Nessel’s statements were enough to “nullify” the charges against the electors since each of the counts requires an “intent to defraud.”
“This isn’t the position of a lay person,” Brown said. “This is not the position of some random attorney or an expert witness. It is the position of the prosecutor.”
Kevin Kijewski, an attorney for elector Clifford Frost, had asked the judge to dismiss the case because it didn’t meet the factors needed to prove forgery — largely an attempt to make an instrument appear to be something that it is not and a risk of exposing someone to loss. The electors’ submission of a document alleging Trump had won the 2020 election was a “political protest,” Kijewski argued, and did not expose a risk because the governor had already submitted a certificate of ascertainment showing Biden’s electors had won.
“There is absolutely no crime,” Kijewski said. “It precludes the necessity of even having a preliminary examination.”
Frost’s lawyer also had initially submitted a motion to dismiss based on prosecutorial misconduct related to Nessel’s statements but withdrew it Friday.
Kijewski said he’d first like to explore whether Nessel has made other similar statements about the case.
Because those statements could serve as exculpatory evidence, he said, they must shared with the defense.
“This particular video makes me think that there are probably other materials that perhaps I don’t have,” Kijewski said.
Staff Writer Craig Mauger contributed.
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