Under criminal investigation, DePerno seeks to be the state’s chief law enforcement officer 

It’s a situation unprecedented in Michigan political history: A candidate for statewide office is running under the possibility of being indicted by the very office that he’s seeking, with a vow to indict the current officeholder if he wins.

The fact that the office in question also happens to be for attorney general, the chief law enforcement officer of the state, only underscores the extraordinary nature of the contest.

Such is the state of the Nov. 8 race between Matthew DePerno, the former President Donald Trump-endorsed Republican nominee, and Democratic Attorney General Dana Nessel. 

Rick Pluta, the senior Capitol correspondent for the Michigan Public Radio Network, has been covering Michigan politics since 1987. He said while there have been candidates in the past who have campaigned while facing a possible indictment, the circumstances surrounding DePerno’s candidacy are “crazy unique.”

Prior to the November 2020 election, DePerno was a Portage-based tax attorney best known as having represented former Republican state Rep. Todd Courser in a 2015 scandal where Courser tried to cover up his extramarital affair with fellow GOP Rep. Cindy Gamrat.

That case ended with Courser pleading no contest to willful neglect of duty by a public officer and he and DePerno being ordered to pay nearly $80,000 in court-ordered sanctions in a failed defamation suit against the Detroit News for their coverage of the story.

The path from obscure attorney to major party candidate for statewide office began with DePerno’s filing of a lawsuit regarding the November 2020 election results in northern Michigan’s Antrim County.

Antrim County has been the subject of many right-wing conspiracy theories for briefly showing President Joe Biden ahead of Trump after the 2020 election, an error that was quickly corrected.

However, the Antrim County case was quickly amplified by Trump and his supporters to push the falsehood that the 2020 election was rigged, an effort that culminated in the insurrection in Washington, D.C., on Jan. 6, 2021.

And while pro-Trump rioters were breaking into the U.S. Capitol to stop the certification of electoral votes for President Joe Biden’s victory, DePerno was across town, meeting with former Assistant Secretary of State Robert Destro. 

The Washington Post reported that the meeting came “as Trump’s allies were pressing theories that election machines had been hacked by foreign powers and were angling for Trump to employ the vast powers of the national security establishment to seize voting machines or even rerun the election.”

The Antrim County lawsuit was eventually dismissed by a 13th Circuit Court judge in May 2021 and then by the Michigan Court of Appeals this past April, but not before DePerno was able to raise hundreds of thousands of dollars in pursuit of the disproven claims.

When he announced his candidacy for AG in July 2021, he issued a statement saying he would “engage in impartial criminal investigations and will follow and enforce the law.”

However, an investigative summary released by the Michigan Attorney General’s Office in August alleges that DePerno had instead engaged in criminal activity in violation of the law.

The summary, written by Chief Deputy Attorney General Christina M. Grossi, was filed as part of a petition seeking to name a special prosecutor to investigate allegations that DePerno and eight others, including state Rep. Daire Rendon (R-Lake City) and Barry County Sheriff Dar Leaf, conspired to illegally obtain and tamper with voting tabulators.

“When this investigation began there was not a conflict of interest,” stated the petition, which voluntarily removed Nessel’s office from the case. “However, during the course of the investigation, facts were developed that DePerno was one of the prime instigators of the conspiracy. A conflict arises when the prosecuting attorney has a personal interest (financial or emotional) in the litigation.”

Nessel said last month that as a result of her office’s active investigation against DePerno, she could not participate in any 2022 candidate debates. She said that the American Bar Association rule 3.6 prevents her from making extrajudicial statements that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” while rule 3.8 bars her from making extrajudicial comments with a “substantial likelihood of heightening condemnation of the accused.”

“I have every reason to believe Mr. DePerno will interject on this subject, whether asked about it or not,” Nessel said. “And in abiding by my oath of office, I will — for all intents and purposes — be drawn into a boxing match with one hand tied behind my back, unable to speak about the matter and unable to repudiate any untruthful or misleading statements Mr. DePerno may assert.”

DePerno responded that Nessel was ducking debates because she “can’t defend her lackluster record of rising crime and demanding for a drag queen in every school,” a reference to a tongue-and-cheek comment Nessel made this summer in response to Republicans’ anti-LGBTQ+ policies.

“Since 2019, Dana Nessel has been an embarrassment to the people of Michigan, and they deserve better,” DePerno said in a statement.

DePerno has continued to attack Nessel. Last week, the Republican showed up at a Saginaw event where Nessel was appearing, the Detroit News reports, to heckle her for not debating him. 

He also recorded a video outside the event for supporters, saying: “She’s hiding from her record. We know she’s the most corrupt attorney general in the country. She is a coward and she is entirely incompetent.”

As for the petition, it indicated that digital IDs used as evidence in DePerno’s Antrim County lawsuit matched those found on voting machines seized as part of an investigation by the AG’s office and Michigan State Police. They were also the same machines featured in the “splash page” on his website.

The petition also stated that DePerno was among those present in an Oakland County hotel room in early 2021 during a test of one of the illegally obtained tabulators.

Despite openly bragging about gaining access to a voting tabulator after the 2020 election, DePerno has dismissed Nessel’s request for a special prosecutor to avoid a conflict of interest as being politically motivated. He has also said she “should be impeached” over the investigation and repeatedly called for her to be imprisoned. 

Neither DePerno’s nor Nessel’s campaigns responded to requests for comment from the Advance for this story.

However, that tone, and the circumstances surrounding DePerno’s campaign, has created deep concern among those committed to fair and open governance.

Common Cause, a nonpartisan group that describes itself as a “grassroots organization dedicated to upholding the core values of American democracy,” says that the freedom to vote is vital to the health of a democracy, and is something that should go beyond party lines or political camps.

“Michigan’s Attorney General has a duty to the citizens of this state to do their part to protect the public interest and uphold the laws passed by our representatives, including election laws,” said Quentin Turner, the Common Cause Michigan program director.  

“Michiganders will ultimately make the decision for who they best believe would do the job, as it should be. However, it is unacceptable for a candidate of any party to take actions or believe in theories that undermine our election and voters’ freedoms. We take issue when any candidate utilizes information they know is false, data they know is suspect at best, to try and move a particular policy agenda that they know is in no way, shape or form doing anything to improve access to the ballot.”

John Pirich, a Michigan State University law professor and longtime GOP election lawyer, summarized the situation a bit more sardonically.

“One word,” he told the Michigan Advance. “Idiotic. The attack on the electoral system by both a candidate for attorney general and the potential attorney general is breathtakingly unbelievable to me. Our system is a very, very good system. There’s no election system that’s perfect, but when you think about it, how often we have elections, it doesn’t occur every day. How they’re organized and run by people at the local level, under the jurisdiction of the state officials, it’s an incredibly efficient, effective, fair system that we all benefit from. And to attack it on the basis of meaningless grounds is outrageous as far as I’m concerned.”

Pirich noted that many of DePerno’s false accusations of fraudulent elections in Michigan don’t reflect its decentralized nature, with a network of municipal clerks who are trained and overseen by the Michigan Department of Elections, but who then implement the elections at the local level. 

“It’s outrageous, the allegations, the unfounded allegations, trumped-up allegations, incredibly erroneous allegations, that are not based on fact,” he said. “If you keep saying something enough times, some people I guess are going to believe it, but that doesn’t change our system and the integrity that’s embedded in our system. Our system is an excellent system, and it’s been proven. Audits, reviews, challenges. All of those things have shown it to be the case over and over.”

As to DePerno’s contention that Nessel’s handling of the investigation into election equipment tampering was politically motivated, Pirich adamantly disagrees.

“She did exactly what an attorney general should do in a situation like that,” he said. 

Pirich said Nessel’s office investigated allegations of impropriety or violations of the law, using the State Police for exactly the purpose that they were intended: to determine if there was credible evidence to proceed forward. He said having received that credible evidence, she did what any Attorney General should do in a similar situation where there’s an appearance of conflict and requested a third party to receive the request and act upon it if required.

“It’s being handled in an absolutely appropriate and ethical manner,” said Pirich. “She’s not involved in it at this point going forward. So I think she did exactly what she should have done, and she did it appropriately and transparently.”

As a political matter, DePerno’s campaign is seemingly marking new territory.

Setting aside the legal implications, Pluta said that in the past, candidates facing such issues, as well as the party that backs them, would try and downplay them as the election approaches. 

But that’s not the case here.

“Matt DePerno is acting like this is a net benefit and using that to try and argue that this is an abuse of authority, which will appeal to his base,” Pluta told the Advance. “But just in terms of the raw electioneering of it, Matt DePerno is going to have to do better than just winning the hardcore Republican vote to win the election.”

Pluta added that what makes that point truly interesting is the notion that of the three top Michigan Democrats on the ballot — Gov. Gretchen Whitmer, Secretary of State Jocelyn Benson and Nessel — the latter had been considered the most vulnerable after only winning in 2018 against GOP former House Speaker Tom Leonard by about 3 points. (Leonard lost this year’s Republican nomination to DePerno).

“You would think that someone like that would be pretty vulnerable,” said Pluta of Nessel. “And she may be; we’re just not seeing it. But from what we are seeing, it doesn’t seem she’s suffering from a decision not to debate as much as Matt DePerno is suffering from a reputation based on pedaling some pretty outrageous election theories.”

Recent polling bears that out, with a survey commissioned by the Detroit News/WDIV-TV showing Nessel widening her lead over DePerno to double-digits. The poll of 600 Michigan voters conducted between Sept. 26 to 29 showed Nessel with a 12 point advantage, up from 6 points a month ago. Nessel also is clobbering DePerno in fundraising.

Ultimately, Pluta said, while the situation may be out of the ordinary, it seems as if much in politics recently fills that bill.

“It’s definitely weird,” Pluta said, “but weird has become so normal in the last couple of election cycles that it’s not the sort of thing that makes you jump up and go, ‘Well, golly, look at that,’ because we’d be doing that all the time.”