'Big Lie': Dismissed election case cited by federal, state investigators

Jul. 16—BELLAIRE — More than a year after the state Court of Appeals ruled against an Antrim County man, stating that election audit powers rest with the Secretary of State and not with individual voters, the case continues to occupy federal and state investigators.

In Antrim County, Clerk Sheryl Guy confirmed Thursday that, earlier this year, two investigators working for U.S. Department of Justice Special Counsel Jack Smith, visited her office with an FBI agent and conducted a recorded interview.

U.S. Attorney General Merrick Garland, in November, appointed Smith to oversee investigations, including whether anyone interfered with the transfer of power following the 2020 presidential election and the Electoral College vote Jan. 6, according to the DOJ.

"So many people still buy into the 'Big Lie,' " Guy said, using a slang term referring to baseless claims about widespread voter fraud in the 2020 presidential election. "It definitely hasn't gone away."

And in Oakland County, a judge on Wednesday clarified state election law, regarding who can possess voting machines, clearing the way for a special prosecutor to make charging decisions in a high-profile criminal investigation in Michigan.

"'(U)ndue possession' is possession that is not authorized by the Secretary of State or by court order," Circuit Court Judge Phyllis McMillen said in her ruling.

McMillen's July 12 ruling answers a different question than Bailey asked, yet echoes the COA's opinion issued last April: barring a court order, it's Michigan's Secretary of State, not local clerks or individuals, with the power, in this case, to authorize someone to possess a voting machine.

Anything else is "undue possession," the judge's ruling states, which, under Michigan law, is a felony.

"We can't comment on the specifics of the case due to the ongoing nature of the criminal investigation," said senior SOS spokesperson Cheri Hardmon, "however, anyone who illegally accessed voting machines must be held accountable under the law."

Judge McMillen had been asked to weigh in on the the possession aspect of the state's election law, by special prosecutor DJ Hilson.

Hilson, who also serves as Muskegon County Prosecutor, was appointed in September, following a request petition from Attorney General Dana Nessel.

Hilson is tasked with reviewing whether criminal charges are warranted in a Michigan State Police investigation into possible election equipment tampering by nine people Nessel named in her petition.

They are: Matthew DePerno, Stefanie Lambert, Daire Rendon, Ann Howard, Dar Leaf, Ben Cotton, Jeff Lenberg, Douglas Logan and James Penrose.

DePerno represented plaintiff Bill Bailey in the Antrim County election lawsuit and later ran as a Republican for state attorney general and lost to Nessel; Lambert is a downstate attorney who signed on to several election-challenging lawsuits; Rendon is a former Republican state representative from Lake City; Howard is a Southfield attorney; Leaf is sheriff of Barry County; and court records show Cotton, Lenberg, Logan and Penrose work, or have worked, in cyber security.

Nessel alleged, in her petition, that DePerno, Lambert and Rendon orchestrated a coordinated plan to gain access to five voting tabulators used in Roscommon, Barry and Missaukee counties, then took the tabulators to hotels or AirBnBs in Oakland County, where Lenberg, Cotton, Penrose and Logan broke into the tabulators and performed "tests" on the equipment.

Hilson sought to clarify whether clerks had the power to distribute election equipment without either a court order or permission from the Secretary of State. Judge McMillen's ruling states they do not.

Among the case law Hilson cited in his request to the court, was Bailey v. Antrim — a case argued by DePerno — which the judge included in her interpretation of Hilson's arguments, in her written ruling delivered Wednesday.

"It is noteworthy that the Secretary of State's involvement in a supervisory capacity of local audits is not discretionary, but mandatory, as indicated by use of the word 'shall,'" the judge said.

"Neither the Constitution nor the statute allows for an individual voter to conduct an independent audit. Bailey v. Antrim Co. Thus, authorization to release the physical voting equipment under any purported 'audit' must be supervised by the Secretary of State and cannot be initiated by a private citizen."

Hilson did not return a call seeing comment Friday, and all of those named by Nessel in her petition have since either declined to comment in media reports or denied any wrongdoing.

"My client has not violated any laws," Lambert's attorney, Michael Smith, previously said in a text message.

Guy said she isn't surprised the federal investigation by Smith, and the MSP investigation review by Hilson, appear to have some overlap, or that news reports from other locations continue to cite names she recognizes.

Leaf, for example, was previously photographed at public events downstate with Michael and William Null, twin brothers and Michigan residents out on bond and currently awaiting trial in Antrim County, for charges related to a plot to kidnap Gov. Gretchen Whitmer.

And Logan is best known as CEO of Cyber Ninjas, a defunct Florida-based company that conducted a headline-grabbing audit of ballots cast in Arizona's Maricopa County, in the 2020 presidential election.

"I don't have anything to hide and I didn't hold anything back," Guy said, of her interview with Department of Justice investigators. "I handed them a disk with the entire Bailey file."

Guy is also referencing Bailey v. Antrim County, an election-related lawsuit filed in 13th Circuit Court by a Central Lake Township realtor who accused the county of fraud in its administration of the 2020 presidential election.

Initial vote tallies mistakenly assigned more than 2,000 votes cast for Trump to then-challenger Joe Biden, and Guy has repeatedly stated it was human error by her office, and not fraud, that was responsible.

A Republican-led state senate investigation determined the same thing, and the mistake was corrected before the county's results were certified, records show.

The state's Bureau of Elections conducted a hand recount of Antrim County's ballots, livestreamed the recount from a local township hall, using local residents as volunteer counters, and also found no fraud.

Nevertheless, allies of former President Donald Trump spread inaccuracies and conspiracy theories about the error, falsely stating it showed evidence of a computer algorithm that could be replicated across the U.S. by those with malicious intent.

Bailey's lawsuit brought a team of operatives, some of whom previously told local officials they represented Rudy Giuliani's legal team, to Antrim County on Dec. 6, 2020, to conduct a forensic exam of the county's voting equipment.

Giuliani is the former Mayor of New York City and an attorney the former president put in charge of his post-election legal challenges, who has since had his law license suspended for promoting election-related conspiracies.

The forensic exam was court-sanctioned, after DePerno filed a motion and 13th Circuit Court Judge Kevin Elsenheimer ruled in Bailey's favor.

Covid-era lock down orders were in effect at the time of the exam, which was conducted inside the county building, and officials required all those present to sign their names on an official sign-in sheet.

Guy on Thursday said Special Counsel Smith's investigators were particularly interested in obtaining a copy of the sign-in sheet. She said she the document accessible in her files and was able to provide it, only because the Record-Eagle previously obtained it in a Freedom of Information Act request.

The sign-in sheet lists seven members of the forensic exam team, eight Antrim County officials including Guy, plus Bailey and DePerno.

"I can't tell you why they wanted it, I can only tell you they seemed very competent, and they now have that document," Guy said.