Appeals court affirms federal judge’s decision to abstain from Michigan fake elector case

A panel of three federal appeals judges have upheld a lower court decision to not intervene with the state’s case against a group of individuals the Michigan Attorney General’s Office says submitted false electoral votes in 2020 for President Donald Trump.

It’s been nearly two years since Michigan Attorney General Dana Nessel announced a group of 16 individuals would each face several felonies carrying years of potential prison time for what she said was an undermining of the public’s faith in elections and a flagrant violation of the law.

According to investigators, after Trump lost Michigan to former President Joe Biden in 2020 by about 150,000 votes in the presidential race, 16 individuals from across the state met in the basement of the Michigan Republican Party’s Lansing headquarters on Dec. 14, 2020. There investigators say the group signed and submitted false documents contending they were the rightful slate of electors for Michigan. Those affidavits were then submitted to the United States Senate and National Archives.

The case has been lengthy, with a state judge hearing out the defense and prosecution of 15 defendants after the state dropped the case against one of the defendants.

Arguments from the defense have ranged from the group’s right to political protest to their actions being a lawful maneuver in the event that the 2020 election results be overturned.

The defense of multiple individuals in the group have taken particular issue with Nessel’s own comments surrounding the case, notably statements she made during a virtual event in September of 2023 where she said the group was “brainwashed” by Trump’s lies about the 2020 election being stolen from him.

“These are people who have been brainwashed,” Nessel said in the video. “They legit believe that … somebody can’t even plead guilty if they wanted to because they can’t admit that what they did violated the law because they still think they’re right.”

The defense team for one member of the group, Clifford Frost of Warren, argued that Nessel and her office are engaged in a “bad faith” case against the defendants, requesting at the end of 2023 that a federal judge intervene in the case. In January of 2024, U.S. District Judge Robert Jonker rejected the defense’s arguments, declining to intercede, saying a proper argument had not been made to support the “bad faith” contention.

Frost’s attorney, Kevin Kijewski, has argued that there was no criminal intent in what the state is alleging, adding that the defendants signed their own real names to the documents in an act of political protest.

However, on Thursday, a panel of judges in the 6th U.S. Circuit Court of Appeals affirmed Jonker’s decision to stay out of the state’s case. The appeal to the lower court’s decision was set before Judges Eric L. Clay, Judge Helene N. White and Judge John B. Nalbandian, a Trump appointee.

The opinion, penned by Clay, an appointee of former President Bill Clinton, outlines that Frost’s defense does not call into question the state court’s competency to consider the challenges that have been made to the validity of the criminal charges he faces.

“…we must ‘assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary,’” the opinion reads. “In addition, Frost’s qualms with the adequacy of the State’s charging documents do not automatically convert his prosecution into a product of bad faith. This is particularly so where, as here, state court remains a viable forum for the consideration of Frost’s arguments.”

Preliminary exams for the group of defendants were held throughout 2024 by Ingham County District Court Judge Kristen Simmons, as the group was divided into three groups for three separate multi-day preliminary hearings, the last of which concluded in October 2024. 

Simmons now faces the task to review all the evidence and testimony the court received during the exams and evaluate if the case should proceed to trial. While a May 2 review hearing is set for the defendants, it’s not known when Simmons will hand down her decision.