Prominent Former Judges & Justice Dept. Officials In GOP Administrations Submit Brief Supporting Georgia’s Request To Bar Consideration Of Chesebro’s “Profoundly Mistaken Legal Position” In Election Interference Case
An amicus brief was submitted Wednesday in the case State of Georgia v. Donald John Trump, et. al. supporting Georgia’s motions regarding the “profound mistake of law” offered by defendant Kenneth Chesebro and suggesting appropriate safeguards to limit how it may be addressed at his upcoming trial.Chesebro, an attorney, is one of 19 defendants, including former President Trump, criminally charged by Fulton County District Attorney Fani Willis with election interference in their effort to overturn the 2020 presidential election result in Georgia. Chesebro’s case is scheduled to go to trial on October 23.
The nine amici submitting the brief are former federal and state criminal justice officials, including judges, senior Justice Department officials, a state Attorney General, and U.S. Attorneys, one of whom also served as a governor. All served in Republican administrations.
The amici include: Charles Fried, U.S. Solicitor General in the Reagan Administration; Steven G. Calabresi, Special Assistant to Attorney General Edwin Meese in the Reagan Administration; and Donald B. Ayer, Deputy Attorney General in the George H.W. Bush Administration.
The amicus brief submitted on Wednesday supports Georgia’s motions to restrict consideration at trial of Chesebro’s “profoundly mistaken legal position […] that legally defective ‘alternate’ electoral slates for a losing presidential and vice presidential candidacy can be utilized by that same unsuccessful vice president during the January 6th meeting of Congress to assert unilateral power to usurp the legal authority of Congress and to refuse to recognize the certificates of the successful candidate.”
In Chesebro’s theory, the brief further explains, “the vice president has the power to recognize himself and his running mate as the winners of the election despite the fact that the electorate and every court that had reviewed the matter decided they lost – or to send the choice of who won to partisan state legislatures aligned with them.”
The brief states:
“It is difficult to conceive of a more profoundly incorrect set of propositions about American law. Although amici have a collective more than two centuries of practice dealing with complex constitutional and other legal issues, one need not be an expert to recognize that if the law says an electoral slate must have a certification from the governor of a state and that certification is missing, then that is not a legally valid electoral certificate. Certainly, the idea that the vice president, an interested party, has the power to disregard the law and the will of the voters in order to perpetuate himself and his boss in their White House tenure based on such legally flawed documentation is inimical to the Constitution and American law.”
This case, the amicus brief states, “is unique in terms of the magnitude of its allegations, but the bedrock legal principles that dictate how it should proceed are universal. Mr. Chesebro – and potentially other defendants – cannot be allowed to create a sideshow by confusing the jury with incorrect and immaterial theories about what they believed the law to be. This Court – not Mr. Chesebro, any other defendant, nor any expert legal witness – is the sole arbiter of the law and has the exclusive province to explain the relevant law to the jury for its deliberations.”
The amici agree with Georgia’s motion that relief is necessary in order to avoid offending Georgia law, confusing the issues, misleading the jury, and risking undue delay.
The amicus brief explains appropriate legal safeguards regarding Chesebro’s assertions and how they may be addressed at trial.
Mistake Of Law Defense
Chesebro should not be allowed to advance incorrect propositions to the jury in the form of a mistake of law defense because Georgia has expressly barred that defense, the brief states.
“It is a deeply rooted principle in common law that neither ignorance nor mistake of law can excuse an otherwise criminal act,” according to the brief.
The “extreme danger of allowing such excuses,” as the Supreme Court has described it, is manifest in many criminal cases including this one, the brief explains. The brief notes that “it is of paramount importance in this case as applied to these defendants who are alleged to have struck at the heart of Georgia’s – and indeed the country’s – democratic values.”
Furthermore, the Georgia legislature has determined that individuals are assumed to know the law and Georgia courts have repeatedly and conclusively precluded defendants from introducing evidence of or arguing mistake of law to the jury.
“To allow otherwise,” the brief explains, “would provide a loophole that defendants – and in particular attorney defendants – could attempt to exploit, confusing the jury and risking the avoidance of justice and responsibility. This is a textbook case of that potential harm.”
Legal Questions Are The Province Of The Judge, Not The Jury. And, Legal Questions Are Not Appropriate For Expert Testimony.
Chesebro’s assertions about the false electoral certificates and the role of the Vice President on January 6 are legal questions, the brief continues, and as such are the exclusive province of the court, not the jury. And, the brief further explains, they also are not an appropriate subject for expert testimony.
The court alone has the role of adjudicating these assertions and has the expertise to do so; the jury does not, the brief states. Legal questions like those raised by Chesebro’s assertions “about the alternate electoral certificates and the constitutional and statutory role of the vice president are therefore for the court alone to resolve.”
The amici in the brief support Georgia’s motion to exclude evidence concerning legal conclusions and evidence concerning the history, operation, interpretation, and applicability of the Electoral Count Act or related constitutional provisions that is most likely to come in the form of expert testimony.
With regard to expert testimony, the brief explains, it is well-established law that experts are not allowed to explain, interpret, or opine on the law, as doing so would invade the province of the judge.
“Permitting expert testimony on legal issues to the jury runs the risk of confusing them,” the brief explains. “Georgia has decided, like other jurisdictions, that doing so is forbidden.”
One example of where Chesebro’s defense verges into impermissible territory is around the relevance of Hawaii’s electoral votes in the 1960 presidential election. That example, the brief points out, is a question of law and is, therefore, the exclusive province of the judge, and not a subject for argument for the jury.
“Such evidence would be irrelevant as a factual matter and wholly inappropriate from a legal perspective,” the brief states.
Focusing on the Hawaii argument, the brief further explains that it is clear “that the 2020 post-election situation was nothing like that of Hawaii in 1960 for numerous reasons. The margin of victory was orders of magnitude smaller in Hawaii. There was an ongoing recount. And the Hawaii electors convened as a contingency solely in the event that the outcome of the recount flipped the result (which was not the case here).”
It is apparent, the brief notes, that Chesebro’s actions did not follow the Hawaii 1960 precedent and will not help the jury establish what happened in 2020. As such, the brief explains, it is irrelevant and should not be admissible.
In addition, the brief reiterates, it would be “wholly inappropriate” to introduce the Hawaii evidence to the jury. “Any evaluation of election law is, necessarily, the province of the judge.”
The brief was prepared by John Thomas Morgan III of J. Tom Morgan, Attorney, LLC, and Democracy 21 Education Fund President Fred Wertheimer.
