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District judge denies motions to dismiss in fake electors' plot

An attorney of one of the defendants argued that Michigan Attorney General Dana Nessel's comment that the defendants were "brainwashed" into thinking former President Donald Trump won the 2020 election undermines the state's case. In this WCMU file photo, Nessel attended the Griffin Forum: Shaping LGBTQ+ Policies in Michigan on the campus of Central Michigan University on Tuesday, Oct. 3, 2023.
Rick Brewer
An attorney for one of the defendants argues Michigan Attorney General Dana Nessel's description of the defendants as "brainwashed" into thinking former President Donald Trump won the 2020 election undermines the state's case. In this WCMU file photo, Nessel attended a panel discussion at the Griffin Forum: Shaping LGBTQ+ Policies in Michigan on the campus of Central Michigan University Oct. 3, 2023.

A judge is refusing to dismiss charges against two defendants in an alleged plot to award Michigan's 2020 electoral college votes to former President Donald Trump.

Clifford Frost and Mari-Ann Henry are among 16 people accused of signing an official document claiming they were electoral college members attempting to cast their votes for Trump. That’s despite Trump’s certified election loss in Michigan by more than 150,000 votes.

Friday morning, attorneys for both appeared in Lansing’s 54A district court to separately argue why the case should be dismissed.

The motions came after Attorney General Dana Nessel reportedly made comments that the defendants had been “brainwashed” into believing Trump had won the state. In comments first reported by the Detroit News, Nessel said the belief that Trump won wouldn’t allow the defendants to plead guilty if they wanted to.

Lawyer George Brown represents Henry. In court, Brown argued the comments undermine the state’s case against his client.

“Convictions here would require the Attorney General to prove beyond a reasonable doubt that the defendant intended to cheat or deceive. The attorney general cannot make that assertion, let alone prove it beyond a reasonable doubt,” Brown said. “Because she now claims that the defendant believed what she was doing was right.”

In response, Assistant Attorney General LaDonna Logan argued Nessel’s comments were irrelevant to the facts of the case.

“Those allegations are not evidence. The evidence comes from witness testimony, it comes from the presentation of documents, which, again, has not happened in this case. So extrajudicial statements made by the attorney general are not evidence that can be put before this court,” Logan said.

Ultimately, Judge Kristen Simmons sided with the prosecution. She said it was wrong to consider dropping the case based on this motion ahead of a preliminary examination.

“And at that time is when the prosecutors, the Attorney General’s office, has a duty and a responsibility solely upon them to put forth sufficient evidence to establish if there’s probable cause enough to move forward with this as a crime,” Simmons said.

In a written statement provided after the hearing, Brown didn’t say whether he plans to appeal the decision.

“We are disappointed in today’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 can’t both be true,” Brown’s statement said, adding, “This issue isn’t going away.”

A lawyer for Frost, the other defendant seeking summary disposition Friday, met a similar result.

Attorney Kevin Kijewski represents Frost in the case. In court, he argued the fake elector certificate couldn’t have been a forgery since they claimed to be Republican electors while it was clear Democratic electors were the state’s rightful slate.

“They didn’t claim to be the Democratic electors. They signed their own names. This is a political protest, if anything,” Kijewski told Judge Kristen Simmons.

Speaking with Michigan Public Radio Friday afternoon, Kijewski explained that argument. He said there are two requirements for an action to meet the standard of forgery.

“It purports to be something that it’s not — that’s a requirement and they didn’t dummy up the certificate or anything. And number two, it has to subject people to a loss, and this is all Michigan Supreme Court case law. And there’s no way that anyone could be subjected to a loss here,” Kijewski said.

Like in the Henry case, Simmons ruled it would be premature to drop the charges ahead of the prosecution’s chance to present evidence.

Kijewski said he and his client were considering appealing the denied motion to dismiss but said there’s “nothing yet planned.”

Kijewski had made a separate motion based on Nessel’s comments as well. But he withdrew that motion, saying he wanted to explore whether there were more similar comments from Nessel that hadn’t yet been brought to light.

In addition to trying to have the case dismissed, Kijewski also filed a motion to have Frost’s case separated from the other 15 charged in the alleged plot.

Simmons denied that motion as well, ruling there was nothing unique about Frost’s case to warrant severing it from the others.

But Kijewski argued the state never made his client an official co-defendant with the others.

“So if he’s entitled to have a separate and distinct preliminary examination, I think he should. Just like all the others if they wanted to do that. But we shouldn’t necessarily abrogate or try to ignore someone’s rights,” Kijewski told Michigan Public Radio.

Frost is next due in court for a probable cause hearing on December 12.

Colin Jackson is a reporter for the Michigan Public Radio Network.