Wisconsin Attorney General Josh Kaul’s political witch hunt against Trump allies via a phony “fake electors” case is crumbling, propped up by a legal asterisk.
In a stinging court filing that shreds the leftist AG’s deeply flawed legal arguments, Madison attorney Joseph Bugni asserts that the problem isn’t that the government can’t prove its case, “it’s that there’s not a case to prove.”
Bugni represents former long-time attorney and former Dane County Judge Jim Troupis, who served as former President Donald Trump’s legal counsel following the disputed 2020 presidential election.
In June, Kaul held a press conference on the Wisconsin State Capitol steps to announce charges against Troupis and his co-defendants, fellow attorney Kenneth Chesebro and political operative Michael Roman, related to what the attorney general and his friends in corporate media have erroneously labeled a “fake electors scheme.” The state Department of Justice hit the three defendants with massaged forgery charges in a case that one former U.S. Department of Justice attorney and Federal Election Commission member described as an “abusive political prosecution” that should be tossed out and ultimately lead to sanctions against a highly partisan attorney general.
Was John F. Kennedy an Election Denier?
As The Federalist reported last month, unsealed documents in Dane County Circuit Court exposed the anemic legal arguments Kaul and crew make in attempting to criminalize the 2020 Wisconsin alternative electors contingency plan. Troupis is fighting to quash a previously secret subpoena that the former judge’s attorney argues fails to meet the basic tenets of probable cause in a crime that does not exist.
The attorney general accuses the defendants of knowingly promoting a false slate of electors as authentic, or at least uttering as much.
Troupis and Chesebro represented Trump’s campaign in the months following the hotly contested 2020 presidential election in which Democrat Joe Biden claimed victory in swing state Wisconsin by less than 21,000 votes. The attorneys earned the ire of leftist election integrity deniers for having the audacity to represent their client and challenge some of the battleground state’s myriad election irregularities and cases of fractured election law in court.
The attorneys employed a plan for an alternate slate of electors, in which Republicans met at the state capitol on Dec. 14, 2020, to cast their ballots for Trump to secure the presidential electoral victory pending the outcome of multiple legal challenges. As the court filings challenging the subpoena detail, alternate electors have been used in past presidential elections throughout U.S. history. In 1960, Democrat candidate John F. Kennedy’s campaign employed the same strategy in Hawaii that Trump’s campaign used in 2020. Kennedy and his legal strategists were not vilified as “election deniers” for their proper use of alternates. As the Troupis defense notes, former Vice President Al Gore’s presidential campaign has long lamented not using alternate electors to protect his position during the disputed 2000 election, in which the U.S. Supreme Court’s ruling in Florida ultimately made George W. Bush president.
‘Precisely What it Purports to Be’
Kaul alleges that Troupis, Chesebro and Roman committed the felony of “forgery-uttering” through the use of the ballot of alternate electors, a complete misreading and misinterpretation of the statue, Troupis’ attorney argues.
“[T]here is not probable cause to believe that the alternate electors’ ballot was a forgery, nor is there probable cause to believe Troupis engaged in a conspiracy to utter a forged document,” Bugni wrote in the original motion. “For one, Wisconsin law is clear: a forged document is one that has been altered to appear as something other than it is. Here, there can be no dispute that the document (an electoral ballot) appears to be precisely what it purports to be. And under Wisconsin law, that isn’t forgery. Likewise, you can only ‘utter’ a forged document, you cannot utter a document that is what it purports to be.”
There certainly was no conspiracy. Troupis and others had on several occasions noted the plan to secure Trump’s electoral rights while litigation challenging Wisconsin’s results moved through the Wisconsin Supreme Court and then the U.S. Supreme Court — a case not finalized until February 2021. Kaul’s Justice Department was aware of it at the time. So were the courts and the media.
In fact, the Wisconsin DOJ issued a memo to the Wisconsin Elections Commission explaining, “Nothing … prohibits or otherwise limits a party from meeting to cast electoral votes during a challenge to an election tabulation. [The statutes] say nothing about an alternative set of electors casting votes and do not expressly prohibit a slate of electors [from] casting votes to preserve their votes in case pending legal challenges prove successful.” The commission sought the guidance from Kaul’s agency in twice rejecting complaints from a leftist lawfare group pushing the “fake electors” narrative.
A ‘CYA’ Asterisk
Faced with a shaky probable cause argument the DOJ now insists that the alternate electors ballot was somehow a forgery because it did not include an asterisk denoting that the votes for Trump should only count if a court found in favor of the president. The government notes the 20 Republican alternate electors in Pennsylvania who were not charged with crimes because they declared their votes would be viable only if they were legally determined to be the “duly elected and qualified electors.”
But, as the Wisconsin court filing points out, “there had never been an asterisk placed on an alternate-elector ballot until some lawyers in Pennsylvania thought to add it in 2020.”
Troupis’ attorney called Kaul’s asterisk argument “specious logic” that does not alter what does and doesn’t constitute a forgery under Wisconsin law.
“Instead, a forgery is ‘the act of fraudulently making a false document or altering a real one to use as if genuine. And nothing on that ballot is either forged or even (for that matter) false,” Bugni wrote in the reply brief, bitingly adding, “To put a fine point on it, the law doesn’t make lawyers into criminals simply because they failed to add a CYA.”
‘Abusive, Meritless Prosecution’
The reply further asserts what even a partisan hack like Kaul should understand, that “criminal law doesn’t turn on novel interpretations of statutes — especially those that have been around since Roman times.”
“And it doesn’t make lawyers into criminals just because they represent an unpopular client or, for that matter, a client who lost the election. Instead, it’s important that a lawyer’s actions be judged according to the profession’s demands.”
What the legal profession demands is fair and full representation of a client. Troupis, his attorney argues, would have committed “legal malpractice” by not protecting the Trump campaign’s electoral rights while litigation remained unsettled. Had the Wisconsin Supreme Court or the U.S. Supreme Court ruled differently, in his favor, Trump, like Gore in 2000, would have had no legal recourse to claim victory. More so, the 1,610,184 Wisconsin voters who cast their ballots for the incumbent would have been disenfranchised.
The court filing also notes that the state, much like the Trump-hating corporate media, has “loosely and imprecisely” used terms such as “certifications” and “certificates” in connection to the slate of alternate electors.
“The State’s language breeds confusion and makes it seem as though Troupis claimed the ballot had some sort of certification — namely, the Governor’s Certificate of Ascertainment — when he hadn’t,” the reply brief states.
It’s all part of Kaul’s attempt to paint a legal strategy as some sort of plot to “overthrow the 2020 election” and undercut “democracy” — central to the left’s election year talking points on Trump, who is seeking another term in the White House. Democrat attorneys general in swing states Arizona, Georgia, Michigan and Nevada are pushing prosecutions of Trump allies in similar alternate elector cases.
Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, says the cases have been spurred by politics not legal principles. The former member of the Federal Election Commission and assistant attorney general for Civil Rights said Kaul doesn’t have a case.
“It’s clear the attorney general is engaging in an abusive political prosecution that has nothing to do with any kind of just case under the law,” von Spakovsky said in a phone interview. “And if there was a good judge assigned to this case, a judge who actually cared about the law and the constitution, that judge would not only dismiss the case, he would sanction the attorney general for filing an abusive, meritless prosecution.”
Presiding over the case is Dane County Judge Everett Mitchell, among the more liberal adjudicators in one of the most far-left county court systems in America. As the University of Wisconsin’s director of communications in 2015, Mitchell told a panel he doesn’t believe shoplifters should be prosecuted for stealing from big box retailers.
“I don’t think that Target, and all them other places – the big boxes that have insurance– they should be using the people that steal from there as justification to start engaging in aggressive police behavior,” he said.
It’s unlikely Mitchell will decide on the motion to quash the subpoena until after next month’s election. Troupis isn’t scheduled to make his initial court appearance until early December.
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
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