In a casual conversation with liberal organizations last week, Attorney General Dana Nessel possibly undermined the cases she has brought against the 16 Republicans who signed a false certificate after the 2020 presidential election to challenge President Joe Biden’s victory.
“These are people who have been brainwashed,” Nessel said to the group in discussing the charges against some of the so-called “false electors.”
“What they say is, ‘We believe that we were in the right. We think that Donald Trump is the real winner of the election. They legit believe that. They genuinely believe it.’”
Her public rant amounts to an admission she can't prove one of the essential elements of the crime, and may be enough to get the cases tossed, legal experts say.
It’s a shocking admission, or blunder, for the state’s top prosecutor to charge defendants with a crime and then publicly say she cannot prove one of the essential elements of the crime, Buss writes.
“Somebody can’t even plead guilty if they wanted to,” Nessel added. “Because they can’t admit that what they did violated the law because they still think they’re right.”
That is exactly the argument the defendants are likely to make in court, and Nessel gave it a lot more credibility.
“The attorneys who are working on this matter in the attorney general’s office must be losing their minds right now,” said Tom Leonard, one-time speaker of the House and former assistant state attorney general. “She has made their job much more difficult in the months ahead proving this case.”
Because the charges Nessel brought against the defendants are criminal, she must prove they intended to commit election fraud and forgery. If they truly were brainwashed, as Nessel claimed in her remarks, the intent to defraud is tougher to prove.
It is the defense former President Donald Trump himself has made in response to the indictment against him for his actions in the Jan. 6 riot at the Capitol.
“This is opening up a can of worms that I don’t believe we have ever seen in a high-profile prosecution like this,” Leonard, a Republican, added.
That opinion is shared by others in the legal community.
“It undermines the validity of her prosecution theory,” Shan Wu, a former federal prosecutor who supports charging the fake electors, told CNN. “If you think these people are brainwashed, then they didn’t have the right state of mind and couldn’t form the criminal intent to break the law, because they were being brainwashed by others.”
Defense attorneys now have an opening to subpoena Nessel as a witness during the preliminary examinations of their cases, where she'd have to explain her statements under oath.
“Whether the attorney general’s comments could hurt the case depends on two things,” said William Ortman, associate professor of law at Wayne State University’s Law School, via email. “(1) The state’s specific theory of ‘intent to defraud,’ which is an element of most or all of the pending charges, and (2) how the Michigan appellate courts have construed that term in these statutes.”
Nessel insists these prosecutions aren’t political. Her ill-considered comments suggest otherwise.
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