Lawyer for Michigan false elector suggests Trump staffer should have been charged

Lansing — George Donnini, a lawyer for one of the 16 Republican electors who signed a certificate falsely claiming Donald Trump won Michigan's 2020 election, said in court Tuesday his client felt misled by the Trump campaign and tied the document to a campaign staffer.

Donnini's comments came at the end of a lengthy day of testimony in Ingham County District Court, where a judge is considering whether felony charges, including allegations of forgery, against six of the GOP electors should advance to trial.

While questioning Howard Shock, a special agent for Attorney General Dana Nessel's office, Donnini argued that Michael Roman, the Trump campaign's director of Election Day operations, was the reason the GOP certificate in Michigan asserted Trump had won Michigan's 16 electoral votes.

“Maybe, you should charge Mike Roman and not a retired farmer,” Donnini told Shock, referring to his client Kathy Berden of Snover.

Shock acknowledged that Roman was considered an unindicted co-conspirator and that the investigation into the false certificate remained ongoing in Michigan.

Roman's lawyer, Ashleigh Merchant, didn't immediately respond to a request for comment Tuesday.

The exchange between Donnini and Shock pointed to one of the mysteries surrounding Nessel's pursuit of the false electors in Michigan: Why have prosecutors charged the electors and not some of the higher profile individuals who advised them to sign the certificate?

Donnini had been asking Shock about text messages from December 2020 between Roman and Kenneth Chesebro, a lawyer who was working with the Trump campaign on its efforts to submit alternate electoral certificates in multiple battleground states in the weeks after the Nov. 3, 2020, election.

The messages were first reported by The Detroit News in December.

Chesebro planned to write alternative language for the Pennsylvania and New Mexico electoral certificates, stipulating the Republicans in those states weren't the official electors but "might later be determined" to be the electors through a successful lawsuit.

"Mike, I think the language at the start of the certificate should be changed in all the states," Chesebro wrote in a text message to Roman on Dec. 12, 2020. "Let's look at the language carefully."

"I don't," Roman replied.

"I can help with drafting in a couple hours," Chesebro then messaged.

Roman responded, "F--- these guys."

Donnini asked Shock whom he thought Roman was referring to when he made the comment. The text was sent the day of a conference call featuring Trump campaign staffers and Republicans in Pennsylvania.

"Is he talking about Ms. Berden?" Donnini asked.

Berden has been a longtime Republican activist in Michigan and was Michigan's Republican national committeewoman at the time of the 2020 election.

Shock responded to the question by saying he interpreted "guys" as a male term.

In response, from the court's gallery, state Rep. Matt Maddock, R-Milford, husband of GOP elector Meshawn Maddock, replied, "Give me a break."

The Republican electors signed the document falsely claiming Trump won on Dec. 14, 2020.

More:Trump campaign recognized legal risks of false electors, still went forward

Donnini said if Roman hadn't block the conditional language from Michigan's certificate, there would have been no charges against the Republicans whose names appeared on the document.

Roman is facing criminal charges in Georgia as part of an investigation into Trump's efforts to overturn the election in that state, including conspiracy to commit forgery.

Donnini noted that Chesebro had told Michigan investigators that he felt misled by the Trump campaign's handling of the false elector certificates.

"Ms. Berden feels the same way," Donnini said.

The back-and-forth on Tuesday in Ingham County District Court highlighted the fifth day of preliminary examinations for the six GOP electors. Lawyers for the electors spent much of the day questioning Shock and assailing the allegations brought against their clients by Nessel's office.

The attorneys cited lingering concerns in December 2020 about the election and other prosecutors' decisions to pass on the cases that Nessel's team pursued.

Defense lawyers argued on Tuesday that their clients had been advised to sign the certificate as a contingency by attorneys who were working with the Trump campaign in case there was some development that reversed Democrat Joe Biden's victory.

At one point, Donnini noted the federal indictment of Trump by special counsel Jack Smith said some false electors "were tricked into participating" in the plot based on the understanding that their votes would only be used if lawsuits overturned Biden's win.

"Do you think that Kathy Berden was tricked into participating on Dec. 14, 2020?” Donnini asked Shock.

"No," Shock replied.

The differing stances on the electors' mindsets could be crucial because for the forgery charges to be successful, prosecutors must prove that the electors had an intent to defraud, under Michigan law.

'Brainwashed' or believer?

In the ongoing preliminary examinations, Ingham County District Court Judge Kristen Simmons will eventually determine whether Nessel's office has presented enough evidence to show there is probable cause to believe that crimes occurred.

Nessel, a Democrat, has argued that the false electors' actions "undermined the public’s faith in the integrity of our elections" and "plainly violated the laws by which we administer our elections in Michigan."

The attorney general announced charges against the 16 Republicans in July. Six of them are in court this week for their preliminary examinations, one has reached a cooperation deal with Nessel's team, and the other nine are scheduled to face their exams beginning May 28.

Donnini said on Tuesday that Ingham County prosecutors and the U.S. Attorney's office in the Western District passed on charging the Michigan false electors before Nessel went forward with the charges.

Andrew Stevens, an assistant prosecutor in Ingham County, penned a memo in 2021, saying the certificate that falsely claimed Trump won Michigan's 16 electoral votes was a "political stunt" and not worthy of criminal charges. At the time, Stevens wrote there was "not any evidence" to prove the false electors had an intent to defraud.

Similarly, Donnini noted that Nessel was recorded last year telling a liberal group that the false electors had been "brainwashed" and "genuinely" believed that Trump won Michigan's election.

"How can someone genuinely believe something and yet have, at the same time, knowingly committed a crime?” Donnini asked Shock.

Shock replied by saying it was akin to someone attempting to rob a bank while believing the money belonged to them.

Lawyer Mary Chartier, who's representing GOP elector John Haggard of Charlevoix, asked if the Attorney General's office had addressed Nessel's comments internally.

"Has anyone discussed in a Teams meeting or anything else, the conflict between Attorney General saying that the electors genuinely believed in the process, in what they were doing, and a prosecution based on intent to defraud?” Chartier asked.

Shock said not to his knowledge.

Judge issues warning

At the beginning of Tuesday's proceedings, Simmons warned the GOP electors and their lawyers not to take photographs of witnesses and not to post disparaging remarks about them online.

Such actions are "ridiculous" and could amount to witness intimidation, which can lead to a criminal charge, Simmons said.

"If it appears that you're taking a photo, I'm going to have to take your phone and have it searched," Simmons said. "Because we're not going to have witnesses being intimidated when they're coming in here, under a subpoena, to give testimony."

cmauger@detroitnews.com