Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification

We have been discussing the campaign of The Lincoln Project and others to harass and abuse lawyers who represent the Trump campaign or other parties bringing election challenges. Similar campaigns have targeted election officials who object to counting irregularities.  Now, the Michigan Attorney General and others are suggesting that Republicans who oppose certification or even meet with President Donald Trump on the issue could be criminally investigated or charged. Once again, the media is silent on this clearly abusive use of the criminal code target members of the opposing party in their raising objections under state law.

On Friday afternoon, leaders of Michigan’s Republican-controlled state legislature met with Trump in the White House at his invitation.  My column today explores the difficulty in any strategy to trigger an electoral college fight. However, the objections from legislators could focus on an host of sworn complaints from voters or irregularities in voting counts. We have not seen evidence establishing the type of systemic problems that would flip a state, let alone the election as a whole. While the legal team did raise some credible electoral concerns, I was also critical of Rudy Giuliani’s global communist conspiracy claim at the press conference this week. Some of these questions are being addressed in the courts. In the meantime, state legislators have a right to raise electoral objections and seek resolution in the legislative branch.

According to the Washington Post, Dana Nessel “is conferring with election law experts on whether officials may have violated any state laws prohibiting them from engaging in bribery, perjury and conspiracy.”  It is same weaponization of the criminal code for political purposes that we have seen in the last four years against Trump.  Notably, the focus is the same discredited interpretation used against Trump and notably not adopted by the impeachment-eager House Judiciary Committee: bribery.

In Politico, Richard Primus wrote that these legislators should not attend a meeting with Trump because “it threatens the two Michigan legislators, personally, with the risk of criminal investigation.” This ridiculous legal claims is based on the bribery theory:

The danger for Shirkey and Chatfield, then, is that they are being visibly invited to a meeting where the likely agenda involves the felony of attempting to bribe a public official.

Under Michigan law, any member of the Legislature who “corruptly” accepts a promise of some beneficial act in return for exercising his authority in a certain way is “forever disqualified to hold any public office” and “shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years[.]”

We repeatedly discussed this theory during the Trump presidency. As I have previously written, a leading proponent has been former prosecutor and Washington Post columnist Randall D. Eliason, who insisted that “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” Eliason further endorsed the House report and assured that “The legal and factual analysis of bribery and honest services fraud in the House report is exactly right” and “outlines compelling evidence of federal criminal violations.” 

The theory was never “exactly” or even remotely right, as evidenced by the decision not to use it as a basis for impeachment. And yet, it’s back. Indeed, the greatest danger of the theory was not that it would ever pass muster in the federal court system but that it would be used (as here) in the political system to criminalize policy and legal disagreements. (Eliason recently defended the attacks on fellow lawyers who are represented those challenging election results or practices).

In my testimony, I went into historical and legal detail to explain why this theory was never credible.  While it was gleefully presented by papers like the Washington Post, it ignored case law that rejected precisely this type of limitless definition of the offense.  As I told the House Judiciary Committee, the Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy in cases like McDonnell v. United States, where the Court overturned the conviction of former Virginia governor Robert McDonnell. Chief Justice John Roberts eviscerated what he called the “boundless interpretation of the federal bribery statute.” The Court explained the such “boundless interpretations” are inimical to constitutional rights because they deny citizens the notice of what acts are presumptively criminal: “[U]nder the Government’s interpretation, the term ‘official act’ is not defined ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited,’ or ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” 

I will not repeat the litany of cases rejecting this type of broad interpretation. However, the case law did not matter then and it does not matter now to those who believe that the criminal code is endless flexible to meet political agenda.

It doesn’t even matter that the Supreme Court reaffirmed prior rejections of such broad interpretations in a recent unanimous ruling written by Justice Elena Kagan. In Kelly v. United States, the Supreme Court threw out the convictions in the “Bridgegate” case involving the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who refused to endorse then-Gov. Chris Christie. The Court observed:

“That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Some decades ago, courts of appeals often construed the federal fraud laws to “proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.” McNally, 483 U. S., at 355. This Court declined to go along. The fraud statutes, we held in McNally, were “limited in scope to the protection of property rights.” Id., at 360. They did not authorize federal prosecutors to “set[] standards of disclosure and good government for local and state officials.” Ibid.”

That is the argument that I raised in the impeachment against the proposed articles of impeachment — supported by a host of experts on MSNBC and CNN as well as Democratic members — that the Ukrainian allegations could be charged as mail and wire fraud as well as crimes like extortion.

What is most disturbing is that, if there was an objection to voting irregularities or fraud, these legislators would be acting under their state constitutional authority. They would be investigated for carrying out their official duties under state law. Many of us can disagree with such objections. (I have stated repeatedly that I do not see the evidence of systemic voting problems to reverse such state results and  I have criticized President Trump’s rhetoric). However, when Democrats like Sen. Barbara Boxer (D., Cal.) challenged the certification of Ohio’s electoral votes in 2004, no one suggested criminal investigations. Nessel is threatening state legislators that, if they meet to discuss such objections, they might be targets of criminal investigations. That would seem an effort to use the criminal code for the purposes of intimidation or coercion. Imagine if this was U.S. Attorney General Bill Barr threatening Democratic legislators with possible criminal investigation for challenging Trump votes. The media would be apoplectic. Yet, when used against Republicans, major publications and politicians are celebrated for the use of the criminal code for such politically motivated threats.

As with the attacks on Republican lawyers, the threats against Republican legislators has been met with utter silence in the media. Just the familiar sound of crickets.

386 thoughts on “Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification”

  1. “If @realDonaldTrump wants to slam the Deep State, he should pardon #Assange, @Snowden, #RealityWinner, #DanielHale, @S_UnwantedSpy
    & all #whistleblowers sacrificed at its altar.” — Jesslyn Radack

    “Jesselyn Radack is an American national security and human rights attorney known for her defense of whistleblowers, journalists, and hacktivists. She graduated from Brown University and Yale Law School and began her career as an Honors Program attorney at the U.S. Department of Justice.” -Wikipedia



    If @realDonaldTrump wants to slam the Deep State, he should pardon #Assange, @Snowden, #RealityWinner, #DanielHale, @S_UnwantedSpy
    & all #whistleblowers sacrificed at its altar.

    Quote Tweet
    Barry Eisler
    · 5h

    It’s strange but true that the greatest way anyone could ever “own the libs” right now would be a pardon of Assange and Snowden twitter.com/ggreenwald/sta…

    4:37 PM · Nov 21, 2020·Twitter for iPhone

    Adam Fitzgerald
    Replying to

    and 2 others

    Well this certainly would be the step in the right direction to those who believe he isnt part of the “swamp”.

  2. As usual, Prof. Turley is selective in his moral outrage. Possible but not likely case of bribery requires condemnation and investigation, but strong arm tactics and coercion are ignored.

  3. BREAKING: Federal judge rejects Trump campaign’s Pennsylvania suit with prejudice, saying it lacks factual proof. https://abcn.ws/36YbwV5

    The judge in the Pennsylvania case, Matthew Brann, is a Republican who,before his nomination, was involved in Republican politics,the NRA and the Federalist Society. He said the Trump case was “without merit and speculative accusations” “unhinged” and a “Frankenstein’s monster”.

    “This is the “OJ in the Bronco” stage of @realDonaldTrump’s presidency.”

    1. PS. “But the decision led Pennsylvania Republican Sen. Pat Toomey to congratulate President-elect Joe Biden, despite adding he was “deeply disappointed” Trump lost.

      “With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign’s lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said in a statement. “I congratulate President-elect Biden and Vice President-elect Kamala Harris on their victory. They are both dedicated public servants and I will be praying for them and for our country.”

      1. Meanwhile, a Trump Campaign lawyer has tweeted that this helps them in their effort to have SCOTUS review a case:

        I don’t know why she and Giuliani think that SCOTUS will grant cert, but first we’ll have to see what the 3rd Circuit rules. Even if SCOTUS granted cert, my impression is that they’d only be ruling on whether it was correct for the motion to be dismissed, and if they ruled that it wasn’t, then it would go back down to the district court for the case to be heard and ruled on.

    2. Another article:

      “In scathing opinion, federal judge dismisses Trump campaign lawsuit in Pennsylvania”


      And in related news:

      “Trump privately plots his next act — including a potential 2024 run”


    3. Joe biden Friday…again you are like screaming “look squirrel”. The bigger picture…the vote fraud of dominion/sequoia/smartmatic is coming on fast like an atomic bomb. Be prepared to eat crow….. and if your one of those vote machine company employees be assigned a prison number.

      1. Hillary would have won in 2016, perhaps, if there’s really something to this “dominion/sequoia/smartmatic” problem.

        “Be prepared to eat crow….. ”

        Have you seen the evidence??

  4. Saturday Night Update:

    Federal Judge Throws Out Trump’s Pennsylvania Lawsuit

    Allegations Haphazardly Stitched Together “Like Frankenstein’s Monster’

    A lawsuit brought by President Trump’s campaign that sought to block the certification of Pennsylvania’s election results was dismissed by a federal judge on Saturday evening.

    U.S. District Judge Matthew W. Brann granted a request from Pennsylvania Secretary of State Kathy Boockvar to dismiss the suit, which alleged that Republicans had been illegally disadvantaged because some counties allowed voters to fix errors on their mail ballots.

    The judge’s decision, which he explained in a scathing 37-page opinion, was a thorough rebuke of the president’s sole attempt to challenge the statewide result in Pennsylvania.

    Rudolph W. Giuliani, Trump’s attorney, personally took charge of the case and appeared at a hearing in Williamsport, Pa., Tuesday in an attempt to justify it. Five other attorneys who represented the president withdrew from the case.

    In his order, Brann wrote that Trump’s campaign had used “strained legal arguments without merit and speculative accusations” in its effort to throw out millions of votes.

    “In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state,” Brann wrote.

    Trump was beaten in Pennsylvania by President-elect Joe Biden, who currently holds a lead over the president of more than 81,000 votes. Counties are due to file their official results on Monday to Boockvar, who will then certify the statewide tallies.

    Trump’s campaign sued Boockvar and a group of counties won by Biden, alleging that they had violated the campaign’s constitutional rights by allowing voters to “cure” administrative errors on their mail ballots.

    Brann wrote on Saturday that Trump’s attorneys had haphazardly stitched this allegation together “like Frankenstein’s Monster” in an attempt to avoid unfavorable legal precedent.

    In trying to depict “ballot curing” as illegal, Trump’s attorneys misstated a decision by Pennsylvania’s Supreme Court. Brann noted in his order on Saturday that the court had in fact “declined to explicitly answer whether such a policy is necessarily forbidden.”

    The president’s campaign sued together with two voters from counties that Trump won, both of whom had their mail ballots rejected because of administrative errors.

    Brann wrote on Saturday that throwing out the election result would not reinstate the pair’s right to vote. “It would simply deny more than 6.8 million people their right to vote,” the judge wrote.

    Trump’s lawsuit initially included formal allegations that the defendants had also violated the campaign’s rights by preventing Republican observers from watching votes being counted, which the defendants denied.

    Those claims were scrapped in a revised version of the suit filed on Sunday. Giuliani and other Trump advisers initially denied that the claims had been dropped, then said they had “strategically decided to restructure” the suit, before finally saying in court filings that the claims were removed by mistake.

    Giuliani asked the judge for permission to restore the deleted claims about count observers in a proposed third version of the lawsuit, but his request was dismissed by Brann along with the rest of the campaign’s legal effort.

    Full Article From: “In Scathing Opinion, Federal Judge Dismisses Trump Campaign Lawsuit In Pennsylvania”

  5. Jonathan, why don’t you cut through the BS. We all know that Trump getting 773 million votes meant he clearly won the Election. Why don’t people like you pipe up and call the Dems what they truly are THUGS and CHEATERS. And we are not going to stand for rule by Socialist Cheating thugs. Either Trump wins or there will be a Civil War. We are tired of no ID to vote rules in THUG DISTRICTS.

    1. ” Either Trump wins or there will be a Civil War. ”

      Hot Air from a big talker.

      And Trump didn’t get “”773 million” votes, so you might want to fix your error.

      Also, grow up.

      1. He isn’t kidding about the civil war part.
        There have been quiet a few Patriots participating in the “stop the steal” protests, but you might notice that a lot of your Patriot friends (if you have any) have been very, very silent the past few weeks.
        We are preparing.
        If Trump’s Kraken fails to stop the steal, the Kraken of We The People is unleashed, and this Kraken plays by completely different rules.

      2. You will see you commie Red punk. You want to try to conflate issues, the point remains FOOL, Trump got 73 million votes and did not lose to an old goat who couldn’t get 12 people to a rally. Who had a 43 percent voter enthusiasm. Why did he not campaign fool? Because they told him we have this won, don’t worry about it. And what did the senile old fool say? We have the greatest every Voter Fraud Org. in history. He told us what was about to happen. And I didn’t fight for my country to see you commies steal elections. The Media laughs about the crooked Dems, and the Chicago Philly election bosses. Don’t tell me you don’t know what is happening, you are a LIAR, you don’t give a damn, you hare America. Well, we are going to help you get the hell out of America you commie punk.

      1. The traitors are the ones who rigged the election. Patriots are the consequences of that decision.
        It won’t be a civil war, it will be a revolution. The chains of tyranny will never rest on Americans again.
        We broke them in 1776 and we will never wear them again.

  6. 12th Amendment

    The 2020 election has failed and goes to Congress.

    50 states will cast one vote each.

    37 are republican.

    Trump wins.

  7. This entire thing is not about the election for President. The Republicans are trying to show the existance of fraud in mail in voting because in the next election the Democrats are going to tell us how well mail in voting worked and how wonderfully it worked in this election. They will say that if Republicans are against mail in voting they are trying to disenfranchise millions of voters. They know that there are people who will not get up off the couch and go vote. They believe that the voters who sit on the couch are their voters. If we can’t get em to the polls we’ll bring the polls to them. Hell, we’ll even bring the ballot to them and show them how to vote. How could we possibly cheat under these heartfelt circumstances. Mark this down.

    1. Trump got a record number of votes for an incumbent because of mail in votes. Are you also complaining about them as “voters who sit on the couch”?

        1. Go ahead. Then all the ballots can be confirmed to be timestamped appropriately with the appropriate signatures attached and matched for all. Then bad ballots could be discarded and a true ballot count performed.

          That would be OK for the Republicans. Essentially that is what the Republicans want.

        2. Please do! Full audit of every vote cast by one R and one D for each ballot. That’s the only way to be sure we didn’t cheat.
          DO IT!

      1. Actually, Trump voters were more likely than Biden voters to vote in person.

        But speaking of breaking records, Trump got more black votes than any Republican presidential candidate than the 1960s. He also about doubled his LGBTQ vote, and increased the Latino vote.

        This was in spite of efforts by the Liberal biased media to falsely portray him as racist, xenophobic, and antisemitic. Looks like quite a few people didn’t buy it.

        1. Trump voters were more likely to vote in person, but the record number of total votes are due to the big increase in mail in ballots.

          Trump is racist, xenophobic and antisemitic.

          1. Record number of votes due to “mail in ballots”…… fraud have any niche therein …maybe a little…some small but biggy way …you know. The statistical analysis of the PA vote numbers alone should be enough to open even a blind mans eyes to the repeated anomalies that have identified the ‘computer program’ designed to do vote flips and ratios on repeatable scale – hence mathematically impossible otherwise if it were NOT manipulated. Senile comrade chian joe underperformed cankles McFraud on a grand scale…except in blue cities in critical swing states. And the late in the night vote machine shutdowns and reboots in the dark hours that started tabulating fraud with the algorithm inseted to insure a comrade bidenski win. If Georgia is already it seems shredding ballots…evidence tampering….all those freshly printed uncreased biden ballots with no down votes….. Oh the irregularities of it all that only a blind partisan sod refuses to see.

          1. Joe Friday biden……. black votes you say ? . When judges amend/change voting laws of which they are not entitled legally to do. And then gobs of ballots by the midnight truck load are delivered and many more found by the usps in perfectly all biden lots….. if you can’t smell the rot…you are part of the problem. But I’m pretty sure you are one of those Russia Russia Schiff bots.

          2. I was waiting for someone to throw out the race card. HAHAHAHAHA!!!
            That word has zero meaning anymore Joe.
            You broke it.

    2. The fact is Republicans are trying to disenfranchise millions of voters. They are completely transparent in this.

      1. Wow…same old line of partisan vomit. You may as well be antifa screaming racist and down with the system with that drivel. If you are so blind as not to see the anomalies regarding presidential vote numbers at odds with lack of down votes on said ballots you are too stupid by half. When the dominion/sequoia/smartmatic vote tabulation franchise has been exposed for the corrupt criminal enterprise it is , to your face….you ignore it’s glaring and stark fraud. Hence people like you devoid of common sense ,justice and fair play are part of the problem.

  8. Nevada voting raffle targeting Native Americans opens door to Trump legal challenge
    Group’s site offered chance to win hundreds of dollars in gift cards to those who had proof they voted. Trump campaign argues it was an illegal incentive.

    This is an attempt by the left to buy votes. Legal or illegal, this tells everyone that Democrats will not be honest.

      1. “If the judge rules that it’s legal, how is it dishonest?”

        That’s correct!!!. Now apply that statement to all of the claims being made by the Trump campaign. This where you continuously fall short. You have a double standard. One for Democrats and a different one for Republicans.

        1. Barb, you said “Legal or illegal, this tells everyone that Democrats will not be honest.”
          In response, I asked “If the judge rules that it’s legal, how is it dishonest?”
          You didn’t answer my question. Instead you responded “That’s correct!!!”

          So are you saying that you were wrong to claim “Legal or illegal, this tells everyone that Democrats will not be honest”?

          “Now apply that statement to all of the claims being made by the Trump campaign.”

          I don’t understand the analogy. I was asking about something **you** said, not about something any campaign said. If you think **I** said something that doesn’t make logical sense, feel free to ask me about it.

          “You have a double standard. One for Democrats and a different one for Republicans.”

          I’ll wait for you quote something I said that you believe illustrates that.

          1. “If the judge rules that it’s legal, how is it dishonest?”

            Commit, if the judge rules buying votes in that fashion is legal then based on our legal system it is legal,, but that doesn’t mean it isn’t dishonest, and laws may be passed in the future to make such actions illegal. Not everything that is dishonest is illegal.

            If you don’t note your double standard when you do it, how will you note it after the fact? If you don’t note your errors when you make them how will you note them after the fact?

            It is not important to me that you recognize any deficiencies you might or might not have. They are pointed out solely to clarity the debate as errors and double standards do cause confusion.

            1. Barb, you’re assuming that it’s buying votes.

              “If you don’t note your errors when you make them how will you note them after the fact?”

              What a bizarre question. Everyone makes mistakes, and people often recognize and correct their mistakes after the fact, if they they’re honest. I’ve corrected a number of mistakes I’ve made in the comments I’ve posted here since the spring, sometimes because someone else points it out, and sometimes because I realize that I made a mistake without anyone pointing it out. Here are a couple of examples:

              Still waiting for you to provide evidence substantiating your claim “You have a double standard. One for Democrats and a different one for Republicans.” Your claim, your burden of proof.

              1. “Barb, you’re assuming that it’s buying votes.”

                Commit, I am not assuming anything. I made that clear and left the decision up to the legal system.

                I said: “Commit, if the judge rules buying votes in that fashion is legal then based on our legal system it is legal,, but that doesn’t mean it isn’t dishonest. Laws may be passed in the future to make such actions illegal. Not everything that is dishonest is illegal.”

                “Everyone makes mistakes, and people often recognize and correct their mistakes after the fact”

                I don’t disagree, but you ought to recognize that a mistake is not a lie. However, you seem to call your errors mistakes and when the opposition makes a mistake you call it a lie. That is what is known as a double standard.

                1. “I said: ‘Commit, if the judge rules buying votes in that fashion is …'”

                  That phrase in bold assumes it *is* buying votes.

                  “you seem to …”

                  And you seem to make a lot of claims about me without providing actual evidence for them.

                  1. “That phrase in bold assumes it *is* buying votes.”

                    Why wouldn’t I assume it to be buying votes? Do you have a more likely explanation? If Republicans were to do that I would also assume it to be buying votes. I’m consistent. However, I am not assuming that process is legal or illegal. In my mind that process is dishonest no matter who is doing it.

                    Whatever claims I make about you are in the reply. You can easily dispel any notions you think are not true by doing so in your next response.

    1. Wait! Did you say, “…an attempt by the Left to buy votes?”

      What the —- do you think the entire last century was about?

      The Left bought the votes of parasites for incalculable trillions of dollars in the currency of affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, absurd teacher/public worker union demands, etc., etc., etc. ad infinitum.

      And, of course, this was all unconstitutional as Congress has no power to tax for individual welfare, specific welfare, redistribution of wealth or charity, only “…general Welfare…,” or ALL WELL PROCEED, such as roads, water, post office, electricity, trash collection, etc. If it is not for ALL to WELL PROCEED, it cannot be taxed for.

      The Left should not be buying votes because the Supreme Court should have struck down everything the Left uses to pay voters. The parasitic voters should not even want to attend the polling places because they cannot vote for “free stuff.” If it weren’t for “free stuff,” the parasites would not attend the polling places.

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