On Oct. 6, Lansing Judge Kristen Simmons, a Democrat appointee, refused to dismiss the case of Mari-Ann Henry and rejected the motion for summary disposition of Clifford Frost.
Ms. Henry and Mr. Frost are two of 16 Republican presidential electors charged with eight felony counts of fraud and election forgery in connection with the 2020 election.
Months before that election, the 16 were lawfully chosen at a party convention of the Michigan GOP and bound by Michigan law to cast their Electoral College votes for President Donald Trump if he won the state in November 2020.
When challenger Joe Biden was declared the winner, the result provoked a flurry of investigations disputing his victory, as well as several lawsuits trying to prove that Mr. Trump had actually won.
The uncertainty of the outcome led the 16 Republicans to—pursuant to the law—meet, vote, and present themselves by mail to Congress as a contingent slate of electors if Mr. Biden’s win was overturned.
A Prosecutorial Nonstarter
In an April 26, 2021, memo to his colleagues explaining his reasons for declining to prosecute, Ingham County Assistant Prosecuting Attorney Andrew Stevens wrote:
“Based on my review of the evidence and legal authority, I do not recommend authorizing charges against the sixteen Republican candidates for electors. ... We face challenges of satisfying our burden of proof on two elements of Michigan’s Election Law Forgery statute.
“Based on my review, this was a political stunt. ... Whether the Republican candidates were grandstanding or preserving their rights, nobody was fooled by their transmitted certification of votes.”
The Same, Only Different
Similar to the actions of the Republican Party, the Democrat Party lawfully chose 16 presidential electors who were legally bound to cast their electoral votes for Mr. Biden if he won the Nov. 3, 2020, election.On Nov. 23, 2020, the Board of State Canvassers officially determined that Mr. Biden was the winner by about 154,000 votes.
The Democrat electors’ votes for Mr. Biden were then officially affirmed, signed, and sealed by Michigan Gov. Gretchen Whitmer, a Democrat, in a certificate of ascertainment, which was sent to Congress and accepted on Jan. 6, 2021—all pursuant to state and federal law.
An Expected End
Judge Simmons’s rulings against the two Republican defendants came as no surprise because even Ms. Nessel said in a widely publicized Sept. 18 video that the jurisdiction in which the electors are being tried is “very, very Democrat-leaning.”Speaking to a virtual conference of left-wing activists, Ms. Nessel said of the 16 Republican defendants, “These people have been brainwashed.”
She said they legitimately believe that they’re in the right and aren’t changing their view.
Ms. Nessel also said in the video that the defendants’ sincere belief that Mr. Trump actually won the state and that they did nothing wrong makes it highly unlikely that any of the 16 would plead guilty or flip to become witnesses for the prosecution against their colleagues.
A Pattern for Future Pleadings Was Set
George M. Brown, Ms. Henry’s attorney, told The Epoch Times in an email after the hearing: “We were disappointed in the court’s decision but will continue to make our arguments at the preliminary exam.“The attorney general represents the people of the state of Michigan, so her statements are admissible in court.
“Her claims and the court filings both can’t be true. If the attorney general believes what she said, how is she continuing to prosecute these people?
“This issue isn’t going away.”
Days before the hearing, Mr. Brown said in a statement that “Ms. Nessel’s public claims about Ms. Henry’s state of mind nullify the government’s entire case.”
“Forgery, false pretenses, and conspiracy are specific intent crimes,“ he said. ”To obtain convictions, the prosecution would need to prove that Mari-Ann intended to cheat or deceive someone, but the attorney general herself just admitted that our client had no such intentions.”
At the hearing, Mr. Brown played a video of Ms. Nessel’s comments for the court and then asked the judge to dismiss the case against Ms. Henry.
Ms. Nessel didn’t respond to a request for comment.
The Arguments of Clifford Frost
Mr. Frost, 75, of Macomb County, is a realtor.His lawyer, Kevin Kijewski, moved to sever Mr. Frost’s case from the other 15 defendants so that he could be dealt with individually.
Mr. Kijewski told the judge that since Ms. Nessel decided to charge all 16 defendants separately, they should be tried separately.
He contended that, although Mr. Frost is a de facto co-defendant, he isn’t a co-defendant de jure because Ms. Nessel didn’t charge all of the defendants with the same instrument.
The motion to sever was denied, with Judge Simmons explaining that the determination was within the discretion of the court.
The court also rejected a motion for the summary disposition of the case against Mr. Frost.
Judge Simmons explained her decision.
“We need to have an evidentiary-based hearing,“ she said. ”There are no facts on record in this case until a preliminary examination.
“The People, as well as the defendant, have a right to a preliminary examination.”
Lansing attorney David Kallman, who represents defendant Hank Choate, a 72-year-old dairy farmer, attended the Oct. 6 hearing via Zoom.
Mr. Choate is scheduled to appear in court later this month.
Mr. Kallman told The Epoch Times that Ms. Nessel’s admissions in the video were very unusual coming from an opposing party and may help the defendants.
“In making her decision, the judge basically ignored the video and did not address the admissions,” Mr. Kallman said.
He noted that he expects that the cases of all 16 defendants will eventually be bound over to Ingham County Circuit Court by Judge Simmons.
In a post-hearing phone interview, Mr. Kijewski told The Epoch Times that the strength of his client’s case is that “Mr. Frost did not commit a crime.”
He said Mr. Frost didn’t deceive, defraud, or cheat anybody by engaging in what he called a “political protest.”
According to Mr. Kijewski, no one was exposed to a risk of loss because state and federal statutes mandate that a governor’s certificate of ascertainment is the only official document that Congress can accept.
He said the Republican electors didn’t forge that document, nor did they forge the names of anybody who affixed their signature on it, nor in any way did they claim to be the Democrat electors. Instead, they signed their own names on their own certificate.
“That is not a crime,” Mr. Kijewski said. “The Republican electors’ certificate is indisputably what it purports to be.”
He said his research has found numerous instances of alternative certificates being put forward and, to his knowledge, the Michigan case is the first one that has ever been prosecuted.
“The case against the Michigan Republican electors is a political prosecution and persecution,” Mr. Kijewski said.
The timing of the charges appears very suspect, occurring as it does, 941 days after the event took place, he said.
The next step in the Mr. Frost case is a probable cause conference set for Dec. 15.
A hearing for six electors scheduled for Oct. 12 was abruptly canceled and rescheduled for Dec. 13 and 14.
