LAS VEGAS (KTNV) — Attorneys for Nevada's accused Republican fake electors attacked the December grand jury indictment against them, saying it was filed in the wrong county and contains fatal defects.
Lawyers Richard Wright, Maggie McLetchie and Monti Levy asked for the indictment against six electors — including Nevada Republican Party Chairman Michael McDonald — to be dismissed.
McDonald and the others — now-Clark County Republican Party Chairman Jesse Law, Nevada Republican National Committeeman James DeGraffenreid, Eileen Rice, James Hindle III and Shawn Meehan — were indicted by a Clark County grand jury last month on charges including filing a false instrument, just before the statute of limitations expired. The electors met in Carson City on Dec. 14, 2020 and signed documents maintaining that former President Donald Trump had won the Nevada election, instead of the actual winner, Joe Biden.
The ceremony was held as part of a nationwide plan by attorneys for Trump to try to overturn election results in states that Biden had won. Similar certificates were filed by Republican electors in Arizona, Georgia, Michigan, New Mexico, Pennsylvania and Wisconsin. Charges have also been filed against Republican electors in Michigan and Georgia, and investigations are ongoing in others.
Attorneys for Nevada’s Republican electors argue that since the certificates were signed — in a televised ceremony in front the legislative building — in Carson City and mailed from Douglas County, the indictment should have been filed in one of those counties. A Clark County grand jury has no jurisdiction over the crime, they argued.
In a joint defense memo filed on behalf of electors McDonald, Clark County Republican Party Chairman Jesse Law and elector Eileen Rice, attorneys attacked the allegation that the document was a forgery.
State v. McDonald et al joint defense memo by Steve.Sebelius on Scribd
“The charge fails as a matter of law because the document is genuine, i.e. the signatures are genuine,” lawyers argue. “As case law makes plain, there is a distinction between offering a forged document and offering a genuine document that contains false information, and the latter is not ‘forgery.’”
The attorneys also argue that prosecutors from the state attorney general’s office failed to introduce evidence that might have persuaded grand jurors not to hand up an indictment.
For example, the electors contend they signed the documents on the chance that Nevada’s election results could be overturned by legal action, and in that event, they needed to supply votes for the official count of Electoral College ballots on Jan. 6.
But witnesses before the grand jury testified that the Nevada Supreme Court had issued a final ruling on a Nevada lawsuit challenging the election results, so electors knew or should have known that there was no chance the results would be invalidated.
Attorneys for the electors, however, argued that the deadline for a U.S Supreme Court appeal had not passed when they signed the certificates on Dec. 14. In addition, a video of the signing ceremony shows Law saying “we want to pull this right back into the courts,” which shows at least Law believed the legal fight wasn’t over. A similar comment was made by former Assemblyman Jim Marchant, who attended the signing ceremony but did not participate in it.
Those facts were made clear in a Dec. 1, 2023 letter sent to the attorney general’s office before the indictments were handed up on Dec. 6.
“The enclosed evidence demonstrates that the public casting of provisional [Electoral College] ballots on December 14, 2020 was based upon a good faith belief that doing so was a necessary next step as part of ongoing litigation to challenge the 2020 election results,” wrote attorney Brian Hardy with the Marquis Aurbach law firm. Hardy requested the letter be presented to the grand jury during its deliberations.
In court papers filed Monday, attorneys for the electors referenced grand jury witness Kenneth Chesebro, a lawyer working on legal challenges for the Trump campaign who testified under a grant of immunity.
Chesebro testified that he inserted conditional language in the fake elector certificates drawn up for Pennsylvania and New Mexico that said electors in those states were signing “on the understanding that it might later be determined that we are the duly elected and qualified electors.” But when he suggested similar language be added to the Nevada certificates, he testified he was told not to by Trump campaign official Mike Roman, who reportedly said, “f--- those guys,” according to Chesebro.
Richard Wright, the attorney for McDonald, said if the grand jury had heard that evidence, it would have changed the outcome of the case.
"I think it would have been different," he told KTNV Channel 13 in an interview at his downtown law office Tuesday. "They would have seen that these six people were misled. They were misled by Kenneth Chesebro. He sent them the documents. And they believed it was legal to do what they were doing. And that would have all been made clear to the grand jury. And it was not made clear to the grand jury because that wasn't explained to the grand jury."
Finally, elector attorneys argued the certificates they signed were obviously fake, and could not have possibly been mistaken by anyone for the real thing. The Republican certificates lacked the state seal and were not signed by then-Gov. Steve Sisolak or then-Secretary of State Barbara Cegavske.
As proof, they showed evidence from the grand jury that the National Archives did not file the certificates in the same place as the real ones from Nevada, and that the copies sent to Cegavske’s office were returned without even being filed.
“Evidencing the lack of intent to defraud or trick anyone, the Defendants did not try to create a certificate that could have been mistaken for a real one,” attorneys wrote.
“Here, upon its face, nobody could act upon the Certificate; it could not have fooled anyone, was not intended to, and in fact did not fool anyone.”
The Nevada Attorney General's Office declined to comment on the filing.
Wright, who has compared the indictments to the prosecution of former Republican state Treasurer Brian Krolicki by former Democratic Attorney General Catherine Cortez Masto, said he thinks the case has political overtones.
"It smells like it to me," Wright said. "I haven't heard a good, non-discriminatory explanation for why venue was chosen here in Clark County. I don't follow all the state cases of the attorney general, but I'm guessing that the attorney general himself doesn't appear in front of the grand jury in all cases that are brought by his deputies. I'm guessing he doesn't have press conferences immediately afterward. It kind of walks like a duck."
