TO: Carol Siemon; Michael Cheltenham FROM: APA Andrew Stevens DATE: April 26, 2021 RE: Electoral College Fraud Prosecution Recommendation Facts In anticipation of the 2020 General Election, Michigan’s two major political parties meet at their respective state conventions and select persons who would serve as candidates for electors of president and vice-president of the United States. See MCL 168.42. Each party selects sixteen candidates for electors consistent with Michigan’s sixteen electoral votes. Id. ‘The Michigan Republican and Democratic parties selected sixteen candidates for electors consistent with the qualifications outlined in MCL 168.41. The 2020 General Election was held on November 3, 2020. On November 23, 2020 the Michigan Board of State Canvassers met to certify the clection results. See MCL 168.842. The State Board of Canvassers certified that Joseph Biden and Kamala Harris, the Democratic Party nominees, received the greatest mumber of votes. Following certification from the State Board of Canvassers, Governor Whitmer must certify “the names ... of the electors of this state chosen as clectors of president and vice-president of the United States.” MCL 168.46. Effectively, Governor Whitmer’s certification elevates the sixteen Democratic Party’s candidates for electors to the official Michigan electors. On December 14, 2020, the Democratic electors met in Lansing to formally cast their votes for Joseph Biden and Kamala Harris, Pursuant to federal law, the electors transmitted certificates of their votes to the President of the Senate, the Archivist of the United States, theSecretary of the State of Michigan, and the Chief Judge of the U.S. District Court for the Westem District of Michigan. See Title 3 U.S. Code See. 11. Notwithstanding the declaration that the Democratic nominees received the greatest number of votes, the sixteen individuals selected by the Republican Party as candidates for clectors appeared at the Michigan Capitol Building wanting to cast their votes for president and vice-president. ‘The Michigan Department of State Police denied them entry into the Capitol Building because they had no legal authority to enter. Those same sixteen people transmitted certificates of their votes for President Donald J. Trump and Vice-President Michael R. Pence to the President of the Senate, the Archivist of the United States, the Secretary of the State of Michigan, and the Chief Judge of the U.S. District Court for the Westen District of Michigan. See Attachment 1. An attomey appearing with the sixteen Republican candidates for electors explained they “sent alternative documents to Congress in case the state Legislature decides to replace Democratic clectors.”' Michigan Republicans who cast electoral votes for Trump have no chance of changing Electoral College result, Malachi Barret, MLIVE, December 15, 2020. ANALYSIS It is the opinion of the Attomey General’s Office that when the sixteen Republican candidates for electors transmitted their certification of votes they violated two criminal statutes: Forgery, MCL 750.248, and Election Law ~ Forgery, MCL 168.9332. Based on my review of the materials and relevant legal authority, Forgery pursuant to MCL 750.248 is a property crime and not applicable to this case and the evidence in this case does not satisfy all the elements of Election Law — Forgery, pursuant to MCL 168.933a. 2 There were claims that the Republican-controlled state Legislature would unilaterally remove the Democratic electors. Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield denied any attempts to defy the certified election results. Michigan GOP legislative leaders eek to ease tensions ahead of Electoral College vote, Paul Egan & Dave Boucher, Detroit Free Press, December 14, 2020,Forgery, MCL 750.248: Pursuant to MCL 750.248, Forgery is defined as follows: A person who falsely makes, alters, forges, or counterfeits a public record, or a certificate, return, or attestation of a clerk of a court, register of deeds, notary public, township clerk, or any other public officer, in relation to a matter in which the certificate, return, or attestation may be received as legal proof, or a charter, will, testament, bond, writing obligatory, letter of attomey, policy of insurance, bill of lading, bill of exchange, promissory note, or an order, acquittance of discharge for money or other property, or a waiver, release, claim or demand, or an acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or an accountable receipt for money, goods, or other property with intent to injure or defraud. Forgery is a felony punishable by imprisonment for not more than 14 years. MCL 750.248(1). According to Michigan’s standard criminal jury instructions, we must prove the following elements: (1) First, that the document in question in this case, was either falsely made, altered, forged, or counterfeited; (2) Second, that the defendant falsely made, altered, forged, or counterfeited this document (3) Third, that when the defendant did this, he/she intended to defraud or cheat someone. See M Crim JI 28.1. Forgery, pursuant to MCL 750.248, is a property crime. Historically, at common law and statutorily, forgery criminalized the false making of a written instrument for a pecuniary gain, The offense of forgery is complete when a person falsely makes any writings enumerated in the statute, with intent to deceive, ina manner which exposes another to loss. People v Susalla, 329 Mich 387 (1974). Other aspects of Michigan statutory and caselaw support defining Forgery as a property ccime. First, MCL 777.16n define a felony’s “Category” and “Class” for sentencing, Pursuant to MCL 777.16n, Forgery is defined as a “Property” offense that is sentenced on the “E” sentencing grid.Second, principles of statutory construction and interpretation further support the conclusion that Forgery, pursuant to MCL 750.248, is a property crime. “Identical terms in different provisions of the same act should be construed identically, statutory provisions must be read and interpreted as a whole, and the meaning given to one section must be arrived at after due consideration of other sections so as to produce, if possible, an harmonious and consistent ‘enactment as a whole.” The Cadle Co. v. City of Kentwood, 285 Mich. App. 240, 249; 776 N.W.2d 145 (2009) (quotation marks, citations, brackets, and emphasis omitted). “[Tyhe entirestatute must be read as a whole, and the meaning given to one section should be determined by considering the other sections. The Clarke-Gravely Corp. v. Dep't of Treasury, 89 ‘Mich.App. 732, 737-378, 282 N.W.2d 202 (1979), Jv. gid. 408 Mich. 958 (1980). Forgery, pursuant to MCL 750.248, is surrounded by similar counterfeiting or forgery property crimes: Uttering and Publishing a financial transaction device, MCL 750.248a; Forgery or Counterfeiting documents related to real property, MCL 750.248b; Uttering and Publishing other instruments (eg. checks, Bills of Exchange, Bills of Lading, gift certificates), MCL 750.249; Casting, engraving, or stamping molds, dies to make a financial transaction device, MCL 750.249a; Forgery of notes issued for debt of state, MCL 750.250; Forgery of bank bills and promissory notes, MCL 750.251. Assuming, arguendo, the certificate the electors sent satisfies all other clements of Forgery, the intent under this statute does not fit the evidence. Submitting the votes did not trick or deceive someone out of money, real property, or other item of financial value. In fact, they did not receive any pecuniary gain. Consequently, Forgery, pursuant to MCL 750.248, does not fit the evidence.Election Law — Forgery, MCL 168.933a: Prior to 2018, Election Law Forgery was prosecuted pursuant to MCL 168.937. Pursuant to MCL 168.937, “[a}ay person found guilty of forgery under this provision of this act shall. . be punished by a fine... or imprisonment . . . not exceeding 5 years...” In 2018, the Michigan Supreme Court ruled that MCL 168.937 “does not set forth a substantive offense” and vacated the conviction. People v Pinkney, 501 Mich 259 (2018). Although the conviction was vacated, Pinkney illustrates Election Law Forgery. The defendant sought to recall the mayor of Benton Harbor. Pinkney, supra at 265. “In order to force a recall election, defendant Pinkney needed to obtain 393 signatures on petitions supporting the recall.” Id. He had sixty days in which to collect the necessary signatures. Jd. Pinkney presented the Berrien County Clerk's with “62 petitions containing 728 signatures support the recall election. Pinkney, supra at 265. The Clerk's office certified 402 of the signatures and scheduled the recall election. Jd. Prior to the recall election, irregularities were discovered. Id. After the petitions were sent to the Michigan State Police Forensic Laboratory, it was determined that the dates associated with some of the signatures were altered “so as to fall within the 60-day window for valid signatures.” 1d? In 2018, MCL 168.933a added the new criminal offense - Election Law Forgery. Pursuant to MCL 168.933a, Election Law Forgery is defined as follows: “[A] person who does either of the following for any purpose under this act is guilty of forgery: (a) Knowingly makes, files, or otherwise publishes a false document with intent to defraud. (b) Knowingly makes, files, or otherwise publishes a document that contains false signatures with intent to defraud.” 2 People v Hall, 499 Mich 446 (2016), is the only other example of Election Law Forgery. In Hall, the defendant was hired by a prospective judicial candidate to collect nominating signatures. al, supra at 449. The night before the signatures were duc, the defendant realized he had not gathered enough signatures. Id, “That night, the defendant filled in blank nominating petitions with false names and addresses .... .. He attempted to disguise his ‘andwriting by using colored pens and writing with his right and left hands.” I.Election Law Forgery is a felony punishable by “a fine not exceeding $1,000.00, or by imprisonment... not exceeding 5 years...” MCL 168.935. As a new criminal offense, there is not a standard jury instruction for Election Law Forgery. The elements of the offense can be discemed from the statutory language. To prove the offense of Election Law Forgery, we have to-prove (1) the defendant made, filed, or published a false document; (2) the document related to some purpose under the Michigan Election Law; and, (3) the document was made with the specific intent to defraud. Based on my review of the evidence and legal authority, the second and third elements are problematic. ‘The second element of Election Law Forgery requires evidence the forgery related to some purpose under Michigan’s Election Law, This case is premised on the theory that the certification of votes created and sent by the Republican candidates for electors is a forgery. See Attachment 1. The certification of votes is required by Federal law not Michigan law. Under Federal law, “[tJhe electors shall make and sign six certificates of all the notes given by them, cach of which certificates shall contain two distinct lists, one of the votes for President and the other of the notes for Vice President ....” 3 USC § 9. Then, Federal law requires the electors to transmit the votes to the President of the Senate, the secretary of the State, the Archivist of the United States, and “to the judge of the district in which the electors shall have assembled.” 3 USC § 11. Admittedly, the Michigan’s Election Law Forgery statute uses broad language: “[A] person who does either of the following for any purpose under this act... .” Additionally, the Republican electors are effectively holding themselves out to be certified electors, which is not true, But, it is questionable whether the certification of votes required by to Federal Law satisfies the second element of Michigan’s Election Forgery statute. Unfortunately, my research cannot answer to this question. I have not found any instances of prosecution under MCL168.933a, The two prosecutions under the old statute, MCL 168.937, do not offer guidance. Ultimately, 1 question whether we can satisfy the second element considering the certification of votes is not required under Michigan law. The third element of Election Law Forgery requires proof that the sixteen Republican candidates for electors acted with the specific intent to defraud. “An intent to defraud means an act to cheat or deceive.” People v Wedel, unpublished per curiam opinion of the Court of Appeals, Docket No, 290324 (Decided Feb. 23, 2010). Based on the current evidence, I question whether we can sustain our burden of proof on this element, ‘They were holding themselves out to be something they were not, so it may be assumed that they intended to defraud or cheat. However, there is not any evidence that proves this element. ‘The clearest understanding of the group's intent came by way of Ian Northon, who appeared with the group at the Capitol Building. He stated the Republican electors sent in the certification of votes in case the Michigan Legislature decides to replace the duly certified Democratic candidates. See Michigan Republicans who cast electoral votes for Trump have no chance of changing Electoral College result, Malachi Barret, MLIVE, December 15, 2020. In essence, the Republican candidates transmitted the certification of votes to satisfy their obligation under Federal law if they became the certified electors, Based on my review, this was a political stunt. This is an opinion shared by others. According to Richard Freidman, a professor at the University of Michigan and constitutional law expert, the electors attempt to cast electoral votes was a political stunt. See Michigan Republicans who cast electoral votes for Trump have no chance of changing Electoral College result, Malachi Barret, MLIVE, December 15, 2020. Professor Freidman continues by stating “[t}he Republican elector votes have no legal authority.” Jd. Finally, Professor Freidman opines“[t}here’s nothing preventing any group of 16 people from getting together and saying ‘we're electors,’ but it doesn’t have any legal force.” Jd. Other news outlets documented the political grandstanding that occurred outside Michigan’s state Capitol building on December 14, 2020. See e.g, Michigan Republicans Tried to Submit Fake Electoral Votes to Capitol, Daniel Villarreal, Newsweek, December 15,2020. ‘Whether the Republican candidates were grandstanding or preserving their rights, nobody vwas fooled by their transmitted certification of votes. Unlike in Pinkney, where the defendant's altered recall petitions tricked the Clerk's office into scheduling a recall election, the Republican electors’ stunt did not trick or fool anybody. Consequently, I question whether we can sustain the specific-intent element of Election Law Forgery. ‘CONCLUSION Based on my review of the evidence and legal authority, I do not recommend authorizing charges against the sixteen Republican candidates for electors. They were not secking pecuniary gain prohibited by Michigan's criminal Forgery statute, MCL 750.248. We face challenges satisfying our burden of proof on two elements of Michigan’s Election Law Forgery statute, MCL 168.933a,ATTACHMENT 1FROM: DATE: MEMORANDUM President of the Senate (By Registered Mail) United States Senate Washington, D.C. 20510 Archivist of the United States (By Registered Mail) 700 Pennsylvania Avenue, NW Washington, DC 20408 Secretary of State (By Certified Mail) State of Michigan 430 Allegan Street Richard H. Austin Bldg, 4th Floor Lansing, MI 48918 Chief Judge, U.S. District Court (By Certified Mail) Western District of Michigan 118 Federal Building 315 West Allegan Street Lansing, MI 48933 Kathy Berden, Chairperson, Electoral College of Michigan December 14, 2020 Michigan's Electoral Votes for President and Vice President Pursuant to 3 U.S.C. § 11, enclosed please find duplicate originals of Michigan's electoral votes for President and Vice President, as follows: two (2) duplicate originals for the President of the Senate and the Archivist, and one (1) duplicate original for the Secretary of State and Chief Judge.CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM MICHIGAN tninisinedorinee WE, THE UNDERSIGNED, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Michigan, do hereby certify the following: (A) That we convened and organized in the State Capitol, in the City of Lansing, Michigan, and at 2:00 p.m. Eastern Standard Time on the 14th day of December, 2020, performed the duties enjoined upon us; (B)That being so assembled and duly organized, we proceeded to vote by ballot, and balloted first for President and then for Vice President, by distinct ballots; and (C)That the following are two distinct lists, ono, of all the votes for President; and the other, of all the votes for Vice President, so cast as aforesaid: For PRESIDENT Names of the Persons Voted For Number of Votes DONALD J. TRUMP of the State of Florida 16 For VICE PRESIDENT Names of the Persons Voted For Number of Votes MICHAEL R. PENCE of the State of Indiana 16IN WITNESS WHEREOF, we, the undersigned, have hereunto, in the City of Lansing, in the State of Michigan, on this 14th day of December, 2020, subscribed our respective names. ta Bok Rose Rook Hank Choate ee Henry ‘John Neggard Cliff st [ct Ven Leuxol- Kent Vanderwood Stanley Grot Marian Sheridan James Renner ‘AmyFacchinello Ken ThompsonCERTIFICATE OF FILLING VACANCY OF THE 2020 ELECTORS FROM MICHIGAN HERERERERE Upon the call of the roll, a vacancy became known due to the absence of Elector TERRI LYNN LAND ‘Thereupon, by nomination duly made and seconded, KEN THOMPSON Was elected by the Electors present, as an Blector of President and Vice President of the United States of America for the State of Michigan to fill the vacancy in the manner provided by law. This Elector participated in the proceedings as set forth in the record of the Electoral College. IN WITNESS WHEREOF, the undersigned Chairperson and Secretary of the Electoral College of Michigan hereunto Subsoribe their names this 14th day of December, 2020. Mayrd Rodriguef Secretary V5CERTIFICATE OF FILLING VACANCY OF THE 2020 ELECTORS FROM MICHIGAN HEAKKEEKER Upon the call of the roll, a vacancy became known due to the absence of Elector GERALD WALL ‘Thereupon, by nomination duly made and seconded, JAMES RENNER Was elocted by the Electors present, as an Elector of President and Vice President of the ‘United States of America for the State of Michigan to fill the vacancy in the manner provided by law. This Elector participated in the proceedings as sot forth in the record of the Electoral College. IN WITNESS WHEREOF, the undersigned Chairperson and Secretary of the Electoral College of Michigan hereunto Subscribe their names this 14th day of December, 2020. Kathy Bergen, Chairperson | > Mayra psc AcCERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM MICHIGAN Teh WE, THE UNDERSIGNED, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Michigan, do hereby certify the following: (A)That we convened and organized in the State Capitol, in the City of Lansing, Michigan, and at 2:00 p.m. Eastern Standard Time on the 14th day of December, 2020, performed the duties enjoined upon us; (B)That being so assembled and duly organized, we proceeded to vote by ballot, and balloted first for President and then for Vice President, by distinct ballots; and (C)That the following are two distinct lists, one, of all the votes for President; and the other, of all the votes for Vice President, so cast as aforesaid: For PRESIDENT Names of the Persons Voted For Number of Votes DONALD J. TRUMP of the State of Florida 16 For Vick PRESIDENT Names of the Persons Voted For Number of Votes MICHAEL R. PENCE of the State of Indiana 16IN WITNESS WHEREOF, we, the undersigned, have hereunto, in the City of Lansing, in the State of Michigan, on this 14th day of December, 2020, subscribed our respective names. Kathy at Chairperson Rose Rook at Mayra Rodriguez, Secretary Hank Choate Meshawn Maddock _ ~ eh Henry ( iam B Clifford 4, SQ Kent Vanderwood Stanley Grot Marian Sheridan oli Re Renner Michele Lundgren Ahr Ae Z ‘ThompsonCERTIFICATE OF FILLING VACANCY OF THE 2020 ELECTORS FROM MICHIGAN wkbbikekk Upon the call of the roll, a vacancy became known due to the absence of Elector TERRI LYNN LAND Thereupon, by nomination duly made and seconded, KEN THOMPSON ‘Was elected by the Hlectors present, as an Elector of President and Vice President of the United States of America for the State of Michigan to fill the vacancy in the manner provided by law. This Elector participated in the proceedings as set forth in the record of the Electoral College. IN WITNESS WHEREOF, the undersigned Chairperson and Secretary of the Blectoral Colloge of Michigan hereunto Subscribe their names this 14th day of December, 2020.CERTIFICATE OF FILLING VACANCY OF THE 2020 ELECTORS FROM MICHIGAN REAR EEE ‘Upon the call of the roll, a vacancy became known due to the absence of Elector GERALD WALL ‘Thereupon, by nomination duly made and seconded, JAMES RENNER Was elected by the Blectors present, as an Elector of President and Vice President of the ‘United States of America for the State of Michigan to fill the vacancy in the manner provided by law. This Elector participated in the proceedings as set forth in the record of the Electoral College. IN WITNESS WHEREOF, the undersigned Chairperson and Secretary of the Electoral College of Michigan hereunto ‘Subscribe their names this 14th day of December, 2020, G i Kathy Bergen, Chairperson - ¢ Mayra peso FY