Michigan elections director testifies at first hearings in fake electors case
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Editor's note: This article has been updated to correct a reference to other states where false elector slates have been charged by prosecutors.
The first major hearing in a case against a group of Republicans facing election-related charges got underway Wednesday, as the preliminary examinations for the first of Michigan's fake electors began.
Six of the 16 individuals initially charged by Attorney General Dana Nessel's Office had their hearings begin in Ingham County's 54-A District Court in Lansing in front of Judge Kristen Simmons. The group has been charged over a scheme to falsely give Michigan's electoral votes to former President Donald Trump instead of President Joe Biden in 2020, despite Biden's victory in Michigan by about 154,000 votes. Those whose preliminary examinations began Wednesday were:
Kathy Berden
Meshawn Maddock
John Haggard
Michele Lundgren
Amy Facchinello
Mari-Ann Henry
The group and others signed documents attempting to give the state's electoral votes to the former president instead of Biden. That slate was eventually transmitted to Congress and the National Archives as if Trump had won Michigan, although the state's electoral votes were awarded to Biden.
These individuals had attempted to gain access to the Michigan Capitol on Dec. 14, 2020, to cast votes for Trump, but were denied entry by Michigan State Police.
Simmons, who, at the end of the hearings, will rule if there is enough evidence to send the cases to a jury trial, heard testimony from three government witnesses, most notably Michigan Bureau of Elections Director Jonathan Brater.
During direct testimony, Brater explained the typical process for a statewide election to be certified in Michigan — put simply, the election takes place, county canvassers certify local results and then the Board of State Canvassers signs off on the statewide results, making them official.
In 2020, there were multiple unfounded claims of wrongdoing in Michigan's elections — which were ultimately proven false — but the Board of State Canvassers ultimately voted 3-0, with one Republican member abstaining, to certify the statewide results showing a Biden victory. A few weeks later, electors seated by Democrats met in the state Capitol to transmit Michigan's electoral votes to Congress for Biden, as expected.
Unexpectedly, Brater testified, he received an email from the National Archives on Jan. 8, 2021, containing an attachment showing a document appearing to be signed by the Republicans eventually charged in the case attempting to give Michigan's electoral votes to Trump.
After this, Brater reached out to the Michigan Attorney General's Office, he said.
“It was unusual to be informed that there had been a separate set of electors that had been sent to the National Archives which were not the ones that the state of Michigan had submitted during the ordinary process," Brater testified.
Defense attorneys objected to Brater's testimony on the email, but Simmons allowed Assistant Attorney General La'Donna Logan to continue direct examination.
"It doesn’t have to be created by this witness," Logan said, responding to a motion for an objection. "It’s not a public document, it’s the body of the crime. This is how the state of Michigan became aware of the body of the crime.”
Defense attorneys pressed Brater on a series of issues during cross-examination, including the numerous lawsuits challenging Michigan's election results in 2020. Those lawsuits were eventually tossed, but attorneys asserted their clients could have just signed the document in the event the lawsuits were successful and overturned Michigan's election results.
Mary Chartier, an attorney representing Haggard, referenced confusion caused by a human error in Antrim County, a conservative county at the heart of a conspiracy theory that falsely asserted that the county’s Dominion Voting Systems tabulators switched votes for Trump to Biden. Trump won Antrim in the final tally, and a hand recount affirmed the results, but Chartier noted concerns from Trump allies on the county's results at the time.
"If votes were being switched, wouldn't that be concerning?" she asked. She also asked Brater whether there were procedures in place if Michigan needed to ever change its election results, which Brater said would be up to a court to decide.
At one point, Chartier asked Brater whether it would surprise him if someone would sign a document they didn't actually read — a defense used in the past by some defendants, who've claimed they didn't know what they were signing when acting as a false elector. Brater said he couldn't say for sure.
Brater spent about 3½ hours on the stand Wednesday. A large chunk of that time was spent on cross-examination by Garett Koger, an attorney for Berden, a Republican National Committee member.
Koger grilled Brater on a series of election law questions — asking him about the U.S. Constitution granting authority to state legislatures to determine presidential elections, whether the document signed by the fake electors closely resembled the official document transmitted to Congress, and even if the page of signatures could definitively be attached to another document claiming to transmit Michigan's electoral votes. Koger spent more than two hours on cross-examination.
Defense attorneys also took issue with a member of the prosecutor's team present Wednesday, former Republican Board of State Canvassers member Aaron Van Langevelde. Van Langevelde was the deciding vote in the decision to certify Michigan's 2020 election results.
Given Van Langevelde's knowledge of the 2020 election process, it's improper for him to be working on the case, attorneys argued, as they each filed an objection to his presence at the prosecution's desk.
“The person we’re talking about here wasn’t just part of the election, he was one of two Republican canvassers," said George Brown, Henry's defense attorney. "His decision to certify, which is very much a part of this case, was an issue at this time.”
Logan said the prosecution did not plan on calling Van Langevelde as a witness, although defense attorneys said they could not guarantee the same. Ultimately, Simmons ordered his sequestration during the preliminary exam, prompting his departure from the prosecution's desk.
Prosecutors also called on Michigan State Police Capt. Darren Green and U.S. Postal Inspection Service worker James Van De Putte to offer testimony. Green was leading security efforts at the Michigan Capitol on Dec. 14, 2020, and denied entry for the fake electors that day.
Van De Putte testified about a parcel that was shipped from an East Lansing post office on Dec. 15, 2020, and arrived at its destination on Jan. 5, 2021, although it's unclear from testimony what was in the parcel or where exactly it was delivered to.
Logistics could stretch prelims into January
During Wednesday's hearing, Simmons was able to hear from three witnesses. The hearing was slated to resume Thursday morning.
Logan said the government plans on calling seven witnesses, while Simmons said she was told of nine potential government witnesses. This doesn't include any witnesses the defense attorneys could potentially call.
Given the amount of testimony still pending, all parties acknowledged it's unlikely the preliminary examination can wrap up by the end of Thursday. But with Simmons having other cases to oversee on her docket and the upcoming holidays, the judge said the parties would have to find another day in January to schedule the continued hearings.
Other defendants charged in the fake electors case currently are scheduled to have preliminary examinations begin Jan. 23. Simmons said she wants to have the first round of hearings conclude before that date.
One defendant whose preliminary examination was also slated to begin Wednesday, Kenneth Thompson, had his hearing pushed back to the January date after his lawyer didn't appear because of a medical emergency.
The group faces felony charges including forgery-related charges each punishable by up to 14 years in prison and election law forgery charges each punishable by up to five years in prison. One defendant, James Renner, had his charges dropped after reaching a cooperation agreement with prosecutors.
After the 2020 election, other slates of fake electors attempted to falsely deliver electoral votes for Trump in other states won by Biden. On Tuesday, a grand jury in Nevada also indicted a group of six Republicans who acted as fake electors for Trump that year.
Contact Arpan Lobo: alobo@freepress.com. Follow him on X (Twitter) @arpanlobo.
This article originally appeared on Detroit Free Press: Preliminary exams for Michigan fake electors underway
