Prosecutors in four other key swing states are pursuing criminal charges for Republicans who fraudulently cast electoral votes for former President Donald Trump, but it remains uncertain whether anyone will be charged in Wisconsin.
Some are wondering what is the holdup.
“There’s a growing population in Wisconsin that quite frankly are pissed that we are late to the party here as far as being able to actually seek criminal charges against these people because they, in broad daylight, tried to subvert the will of the people,” said Nick Ramos, executive director of the Wisconsin Democracy Campaign, a voting rights group.
Arizona Attorney General Kris Mayes announced last week that a grand jury had handed down a slate of indictments targeting people who participated in or orchestrated the scheme in the wake of the 2020 election to keep Trump in the White House.
It follows similar moves in Georgia, Nevada and Michigan, where the so-called fake electors have all faced criminal charges.
In Wisconsin, Attorney General Josh Kaul’s office has said it cannot confirm or deny the existence of any similar investigation being conducted by the state Department of Justice.
About all that's known came from a CNN report in December that one of the core architects of the fake elector effort, Kenneth Chesebro, was cooperating with a state-level investigation in Wisconsin.
Critics of Kaul's silence on the issue point out that Wisconsin Republicans played a key role in the fake electors scheme that spread to other states.
Shortly after the Wisconsin Supreme Court tossed out a lawsuit from Trump in December 2020 seeking to invalidate the state's election results, Democratic electors met in the state Capitol to cast the state's 10 electoral votes for President Joe Biden.
At the same time, elsewhere in the building, 10 Republican electors met secretly to certify to the U.S. Senate that Trump won the state, without evidence of fraud that could have changed the election outcome in Wisconsin. The Republicans' documents were ultimately sent to Congress, Secretary of State Doug LaFollette and others.
Now, with Arizona adding to the list of states that are wrapping up investigations, Wisconsin’s status looks particularly “conspicuous,” said Jeffrey Mandell, an attorney with Stafford Rossenbaum and Law Forward who handled a civil lawsuit against the state's fake electors.
A group of electors who falsely filed paperwork certifying that former President Donald Trump won Wisconsin in 2020 have yet to be charged criminally in Wisconsin, although other states have done so.
The civil litigation in Wisconsin ended with the electors reaching a settlement in December. Chesebro and James Troupis, two attorneys who helped imagine and organize the effort in cooperation with Trump’s aides, settled their portions of the suit in March.
The Wisconsin Election Commission said in 2022 that the fake electors didn't break any state laws, pointing to a legal analysis from Kaul's office that the Republicans were trying to keep their options open if a future Trump legal effort was successful.
But Mandell and others believe there is room for criminal charges.
"There has to be accountability," Gov. Tony Evers told the Milwaukee Journal-Sentinel in August. "What they did was wrong, and so I'm hoping somebody will pick up the banner here, because this has to happen."
Documents unearthed as part of Troupis and Chesebro’s settlement agreements show that the two men, as well as key Trump advisers, saw Wisconsin as critical to the success of the fake elector effort.
Emails between Trump adviser Boris Epshteyn and Troupis show the goal was to commence the fake elector effort in Wisconsin before growing it to other key swing states, such as Georgia, Michigan and Nevada.
“But for the action of some individuals here in Wisconsin, none of this would have happened anywhere,” Mandell said. “And that makes it particularly notable that participants elsewhere are being held to account. And the participants here in Wisconsin, including some of the people who were absolutely vital to this scheme coming into existence and spreading to other states have thus far escaped any criminal charges at all.”
The Republicans involved have said that their certification as electors was necessary in case Trump’s legal efforts to overturn the results of the election in Wisconsin were successful. They said they did not realize it would be part of a broader aim to subvert the Electoral College.
'We were tricked,' former GOP chair says
“We’ve seen time and time again when we’ve had the ability to talk to people and tell them what we knew, more importantly, what we didn’t know, show them our text messages, our emails, it becomes very clear,” Andrew Hitt, a former chair of the state Republican Party, told WISN 12 in December. “We were tricked, we weren’t made aware of any ulterior motive or scheme and we wouldn’t have gone along with it had we known about it.”
While those who served as fake electors acknowledged Biden’s victory as part of their settlement and vowed not to try a similar effort in 2024, they also did not admit any wrongdoing. Neither did Chesebro and Troupis.
“It is the duty of lawyers to vigorously represent their clients, regardless of their popularity, within the bounds of the law,” Troupis said in a statement after his lawsuit settlement. “Our representation (of Trump) was vigorous and ethically appropriate.”
Past efforts to force a prosecution in Wisconsin have been unsuccessful. Milwaukee County District Attorney John Chisholm in 2022 declined to prosecute the electors, saying the matter would need to be handled by state or federal authorities.
Mandell also filed a complaint with Dane County District Attorney Ismael Ozanne in 2022 over the matter but said he has not heard from Ozanne’s office for over two years. Ozanne’s office did not respond to the Cap Times' request for comment on the status of that investigation.
The fact that Arizona filed criminal charges before Wisconsin officials is noteworthy, Mandell noted, because the Copper State has had a Democratic attorney general only since January 2023 and its previous Republican office-holder maintained no laws had been broken. Wisconsin has had a Democratic attorney general, Kaul, since before the 2020 elector scheme ever happened.
The status of other states’ fake elector cases range. In Michigan, Attorney General Dana Nessel on Monday executed search warrants against Google and X in support of her office’s probe. In Nevada, the electors won’t stand trial until early 2025.
The looming 2024 election — and, as of December, the four-year anniversary of the fake elector meeting inside the Capitol in Madison — created as great a sense of urgency as ever, Mandell said.
“I want to be careful not to tell those folks how to do their jobs,” he said. “But intuitively, it seems to me that if what you’re trying to do is hold people accountable and thereby deter both those people and others from engaging in any conduct along similar lines, you would want to do that in advance of the election if you could.”
