Trump Lawyer Gets Defensive About Radical Legal Theory Behind Fake Electors Plot

UNITED STATES - SEPTEMBER 11: Cleta Mitchell, Esq., of Foley & Lardner, LLP, poses in the firm's law library on Tuesday, Sept. 11, 2007. (Photo By Bill Clark/Roll Call/Getty Images)
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Trump lawyer Cleta Mitchell had a series of terse exchanges with Jan. 6 committee investigators as she fielded questions about the legal theories that drove the Trump team’s scheme to overturn the 2020 election results, newly released transcripts from the committee illustrate. 

At times as she sought to justify the Trump campaign’s embrace of the alternate electors strategy, Mitchell articulated a version to the independent state legislature theory that recently was argued before the Supreme Court, claiming that states had the sole power to appoint electors.

“The Constitution of the United States grants plenary power to state legislatures to choose the electors of the state,” she said. 

“Congress has enacted a statute which is an enabling law, which I happen to think is unconstitutional, because that power granted in the Constitution to state legislatures … is complete and total,” she continued “There’s nothing in the Constitution about allowing people, citizens to vote on electors.”

At other times she went even further, seemingly suggesting that Congress also had the ability to decide the outcome of an election, regardless of the vote. 

One gruff interaction began when an investigator, whose identity is unknown, asked about text messages she’d exchanged with Senator Mike Lee (R-UT) sometime after the election. According to the investigator, Mitchell suggested that Republican senators should “draw a line in the dirt” and refuse to accept “illegal” electors. 

“The Senate should start making plans to object to the Biden electors in those states where the election is clearly fraudulent,” Mitchell allegedly wrote to the senator in December 2020.

The investigator then asked Mitchell to explain how she came to that conclusion: “Can you address your argument here, what you’re suggesting to Senator Lee?” they asked

“It speaks for itself. It speaks for itself,” Mitchell replied, according to the transcript.  

“I did think it was important for senators before deciding to certify electors to satisfy themselves that the elections were conducted in accordance with the law and that there were not more illegal votes included in the certified totals from the state than the margin of difference between the candidates,” she responded. “To me that’s just prudent.”

The investigator then ran through some other texts from Lee, including one in which the senator appeared to suggest that alternate slates of electors would be needed in order for Congress to subvert the election. 

Asked whether she agrees, Mitchell said she did not.  

“So I just want to make sure I understand this,” the investigator said. “I think you just said this, that Congress could decide to reject a certain state’s electors for any reason at all; is that right?”

“And they have,” Mitchell responded, alluding to when Democrats objected to electors for Trump and George W. Bush. Those electors, however, were still counted.

The investigator knew this, too. “Are you aware of any examples where that actually happened, they did not count that state’s electors, other than just objections during the joint session?” the investigator asked. 

“Well, they didn’t get a majority of people to reject the electors,” she responded. “So they would be certified and accepted, noting the objections of the members who chose to vote no. And that was not considered an insurrection.”

The investigator then pushed on the argument that Congress can just reject a set of electors.

“Before this we’ve been talking quite a bit about the state legislators and your view of the plenary authority they have to appoint electors as part of a presidential election,” the investigator reminded Mitchell. “Could Congress, then, under this idea reject a state legislator’s chosen set of electors if they meet with the state legislatures and choose their electors?”

“This is a hypothetical; correct,” Mitchell replied. 

As the questioning continued, Mitchell began to get increasingly defensive.

“If a state legislature exercises their plenary authority to choose the electors that they want in a presidential election,” the investigator asked, “[…] could the U.S. Congress decide to reject them for any reason or no reason at all?”

Mitchell’s lawyer intervened to ask whether the question was hypothetical, or referring specifically to what Mitchell discussed with Lee. The investigator asked if Mitchell was refusing to answer the question. 

“You keep asking me the same thing and I keep telling you the same thing,” she said.

“I think state legislatures have a certain authority and I think members of Congress have a separate distinct responsibility and authority,” she said. “And I don’t think any of this, none of it, should rise to the level of your badgering me, because I’m a lawyer and I’m having a conversation with a senator about the constitutional prerogatives of the Senate.”

“The document speaks for itself,” Mitchell reiterated. “I’m not going to speculate further, not on what I meant or what my intent. The document speaks for itself.”

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