Barry County Sheriff Dar Leaf speaks during the "American Patriot Rally-Sheriffs speak out" event at Rosa Parks Circle in downtown Grand Rapids on Monday, May 18, 2020. The crowd is protesting against Gov. Gretchen Whitmer's stay-at-home order. (Cory Morse | MLive.com) Cory Morse | MLive.com
It’s been a week since the Department of Attorney General requested a special prosecutor to review charges against nine individuals who allegedly stole and illegally analyzed voting machines last year.
Among those named in the request are Republican Attorney General candidate Matt DePerno and Rep. Daire Rendon, R-Lake City. Nessel requested a special prosecutor because she and DePerno are expected to face off in November’s general election for Michigan’ top chief law enforcement job.
She has petitioned the Prosecuting Attorneys Coordinating Council for a special prosecutor to be appointed in the case, as first reported by the Detroit News. That request is still pending, putting things at a standstill in the affair for now.
Until that request is answered, here’s what we know so far about the probe itself.
Who are the nine involved?
In addition to DePerno and Rendon, a third-term House Republican lawmaker, seven others stand accused of participating in tampering with voting machines following the 2020 presidential election. These include lawyer Stefanie Lambert Juntilla, Barry County Sheriff Dar Leaf, Ann Howard, Ben Cotton, Jeff Lenberg, Douglas Logan and James Penrose.
Leaf and Juntilla are not new names to the conspiracy of widespread fraud in the 2020 election. Leaf, who refers to himself as a “constitutional sheriff,” has tried to use his position to launch his own investigation into the 2020 election, seeking to prove fraud did occur. Juntilla is an attorney who has since been sanctioned for her role in filing what a judge called “frivolous lawsuits” seeking to overturn the election results in Michigan.
Both Cotton and Logan have also been enmeshed in election conspiracy as well, though in Arizona. Logan serves as the CEO of the Florida-based firm Cyber Ninjas, which was hired by the Arizona Senate to audit the 2020 election results in Maricopa County, according to the Arizona Mirror. Cotton was a subcontractor for that audit, and also is the founder of the digital forensics company CyFIR.
The remaining three – Howard, Lenberg and Penrose – have each previously been involved in efforts to question the legitimacy of the 2020 presidential election results. As part of the probe, it is alleged Lenberg and Penrose, alongside Cotton and Logan, “broke into” five tabulators that were allegedly sized and taken to either a hotel or Airbnb in Oakland County “and performed ‘tests’.”
Howard is alleged to have then “coordinated printing of fake ballots to be run through the tabulators and recruitment of ‘volunteers’,” according to the request.
What charges could they face?
In her petition, Nessel’s department named six possible charges for those named: conspiracy, using a computer system to commit a crime, willfully damaging a voting machine, malicious destruction of property, fraudulent access to a computer or computer system and false pretense.
More charges could also potentially be filed against the nine, the petition indicates. Further, simply because the document lists these six charges does not mean each of the individuals named in the probe will be charged with every potential violation – or be charged at all.
“All of these are potential charges,” said Jonathan Weinberg, a Wayne State University law professor. “What we know so far is that (Michigan State Police) has determined these are charges that can be substantiated against the group … but it’s the job of the special prosecutor to determine which of these charges should be brought.”
When can we expect charges to be filed?
It remains to be seen when a special prosecutor will be appointed, meaning that it also remains an unknown when charges could be filed. Historically, a special prosecutor has been appointed anywhere between 60 and 90 days after a request, depending on the rigor of the case at hand.
The election could throw a wrench into that timeline though. As of Aug. 5, the date the special prosecutor request was lodged with the Prosecuting Attorneys Coordinating Council, there were less than 100 days between it and the 2022 midterms.
Should DePerno not win his bid for attorney general, Weinberg noted, then continuing to pursue charges against him should not be an issue as he would return to being a normal citizen. But should he win, becoming Michigan’s 55th attorney general, then DePerno’s time in office would undoubtedly be shadowed by the potential charges.
Portions of Michigan’s election law does say that the “office of secretary of state or attorney general shall become vacant upon the happening of … his conviction of an infamous crime or offense involving the violation of his oath of office.” But what is considered an “infamous crime” is not spelled out in such statute.
Reporting from the Detroit Free Press notes, though, that there is an opinion from former Attorney General Frank Kelley which indicates an infamous crime “means any crime punishable by imprisonment in the state prison.”
Why is a special prosecutor needed to evaluate the possible charges?
The Prosecuting Attorneys Coordinating Council will be tasked with picking a special prosecutor to review potential charges to avoid the glaring conflict of interest between DePerno and Nessel, who stand as likely political opponents this November.
As DePerno was simply the Republican Party’s potential attorney general candidate when the investigation first started in February 2022, no conflict between he and Nessel yet existed. Now, however, pursuing these charges must be done by another, given that the petition indicates DePerno “was one of the prime instigators of the conspiracy.”
“The normal rules of conflict of interest that apply to private attorneys do not apply with full effect to the Attorney General, but there are still limits on how the Attorney General can carry out her legal duties while a conflict of interest exists,” Justin R. Long, an associate professor of law at Wayne State University Law School, told MLive.
Appointing an alternative special assistant attorney general – or special prosecutor – is one way the attorney general could manage these conflicts, he added. But Long also indicated that there did not seem to be “any legal obstacle to the Attorney General’s appointment of an independent prosecutor in this situation.”
How are those charged responding?
DePerno has maintained that the charges are an effort by Nessel to “damage” him “strategically,” saying in an interview with WTKG talk radio earlier this week: “Ninety percent of the facts that she lays out, that she calls facts in her petition, are either false or I have no knowledge of what she’s talking about.”
Tyson Shepard, DePerno’s campaign manager, took those comments a step further, telling MLive that Nessel had taken part in “an unethical investigation using taxpayer money to target her opponent and enrich her campaign.”
“The idea of criminal charges being brought in this case is nothing more than a far-left fantasy. Nessel knows that precinct clerks voluntarily gave permission to third parties to review tabulators. By its very definition, there was no ‘unauthorized access’.” Shepard said. “She knows her statements against DePerno are false and he categorically denies her allegations. But her intentions have never been to conduct a real investigation.”
He continued by saying Nessel’s “real intentions” were to disparage her political opponent prior to conventions and the November elections. The Michigan Republican Party is scheduled to hold its nominating convention Aug. 27 in Lansing, where it will officially solidify its ticket for the November election.
Others named in the probe have stayed quiet since the special prosecutor request was made public.
Senior Political Reporter Simon Schuster contributed to this report.
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