Earlier this week, Wisconsin Attorney General Josh Kaul unveiled felony charges against three people involved in the “fake electors” scheme in his state after Donald Trump’s 2020 election loss: lawyer Kenneth Chesebro; former judge and local Republican luminary James Troupis; and Mike Roman, who was Trump’s director of Election Day operations.
Wisconsin has become the fifth state in which criminal charges have been brought against, or about, the fake electors. And prosecutors say it was a memo from Chesebro to Troupis that ultimately hatched the fake electors schemes in seven states — so while Kaul might be late to the table, he still might be serving up justice where it all began.
Yet, even with Kaul’s public assurance that his investigation remains ongoing, you may be wondering why none of Wisconsin’s 10 fake electors have been charged. On MSNBC last week, I posited one potential answer: Could it be because they — uniquely among their counterparts — have shown a level of remorse that thus far has eluded so many others involved in trying to overturn the 2020 presidential election?
After all, in settling civil litigation last December, the 10 fake electors issued a joint public statement, saying in part:
We hereby reaffirm that Joseph R. Biden, Jr. won the 2020 presidential election and that we were not the duly elected presidential electors for the State of Wisconsin for the 2020 presidential election. We oppose any attempt to undermine the public’s faith in the ultimate results of the 2020 presidential election. We hereby withdraw the documents we executed on December 14, 2020, and request that they be disregarded by the public and all entities to which they were submitted.
Kaul might believe those electors are now genuinely sorry. But I no longer think their contrition is the main reason for his exclusion of them from the existing criminal complaint.
Instead, according to a source familiar with prosecutions in Wisconsin, the blame more likely lies with state statute 971.19(12), which provides that in criminal matters relating to elections, “a defendant who is a resident of this state shall be tried in circuit court for the county where the defendant resides.” Put another way, a Wisconsin resident charged with an election-related crime cannot be forced to stand trial where the crime happened; all that matters is where that person lives now.
So that could mean bringing several criminal cases — with the real possibility of inconsistent results. But it’s even more complicated than that.
My source also tells me that, as is the case in New York state, the Wisconsin AG has limited criminal authority and instead must rely on cooperation — if not outright permission — from local district attorneys. My source also tells me that, as is the case in New York state, the Wisconsin AG has limited criminal authority and instead must rely on cooperation — if not outright permission — from local district attorneys. For example, Kaul was only able to bring the case he has because the district attorney in Dane County, where Troupis lives, authorized the AG to do so. (The other two defendants, Chesebro and Roman, live outside Wisconsin and are therefore unaffected by the law.) And it’s not exactly clear whether a Republican elected DA would let the state AG play any role in any investigation or prosecution of a fake elector living in their county. So what’s Josh Kaul to do? Prosecutors are generally the first to tell you that treating like cases alike is a factor in their charging decisions. But here, no matter how solid his proof, Kaul can’t guarantee that the 10 fake electors will, in fact, receive equal treatment under the law. And that uniformity and fairness across cases might be the biggest reason, at least in Wisconsin, to wish that United States Attorney General Merrick Garland had thoroughly investigated the fake electors’ conduct and brought federal charges against them — whether they live in Georgia, Michigan, Arizona, Nevada or, last but not least, Wisconsin.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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