Michigan AG calls for special prosecutor in case now involving her Trump-backed opponent

·9 min read
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Michigan's attorney general is requesting a special prosecutor be named to investigate her Trump-endorsed opponent, citing evidence tying him to a potentially criminal scheme to seize and tamper with voting machines, according to documents obtained by POLITICO.

The decision comes after a monthslong investigation by Michigan State Police and the attorney general, Dana Nessel, into voting machine breaches that took place in several Michigan counties. That investigation unexpectedly led to Kalamazoo lawyer Matthew DePerno, whom former President Donald Trump has taken an outsize interest in promoting to be Michigan’s next attorney general.

According to an Aug. 5 petition from Nessel’s office requesting a special prosecutor, DePerno, in concert with two other people, “orchestrated a coordinated plan to gain access to voting tabulators” that were illegally seized from county clerks.

The petition was formally made to the Michigan Prosecuting Attorneys Coordinating Council, an autonomous state body. In it, Nessel’s office states that DePerno — who has been a pivotal figure promoting Trump’s false allegations that the 2020 election was stolen — was present at an Oakland County hotel room sometime in early 2021, during which tabulators were tampered with. According to people involved in the investigation, this is among multiple pieces of evidence linking DePerno to the breach of several voting machines.

As it became evident that DePerno was a subject of the investigation, Nessel’s office decided to request a special prosecutor so as to try to avoid the appearance of political motivation, according to the request.

“When this investigation began there was not a conflict of interest. However, during the course of the investigation, facts were developed that DePerno was one of the prime instigators of the conspiracy,” says the petition. “A conflict arises when ‘the prosecuting attorney has a personal interest (financial or emotional) in the litigation,’” it says.

POLITICO has reached out to DePerno for comment. Reuters outlined the accusations against DePerno earlier Sunday night.

DePerno is set to formally receive the GOP nomination for attorney general later this month after winning the endorsement of party delegates in April. Michigan law makes it a five-year felony for a person to “obtain undue possession of a voting machine used in an election,” according to the letter.

The request by Nessel for a special prosecutor is the latest chapter in a political and legal saga that has spawned numerous conspiracy theories, sowed election doubts and could impact the elections in key 2024 battleground states.

DePerno led a November 2020 lawsuit against the state’s Antrim County over an election night tabulation error that was quickly fixed but which Trump and his allies seized on to claim the entire presidential election was fraudulent. Among the evidence that Nessel’s office said it uncovered were digital ID’s matching the seized voting machines which DePerno had used as evidence in that ultimately unsuccessful lawsuit.

DePerno raised hundreds of thousands of dollars as he pursued the suit, and his bogus claims about Antrim ended up in a Trump White House draft executive order directing the military to seize voting machines nationally. The order was never issued but came to light as part of a U.S. House investigation into the Capitol riot.

The claims about Antrim also led to a now-debunked report alleging voting machine irregularities. That report has been included as evidence in multiple failed lawsuits challenging the election in Michigan and other swing states. Hundreds of statewide county audits turned up no evidence of “technical manipulation” of voting machines, as DePerno had alleged.

DePerno was also involved in a so-called audit of the 2020 presidential vote in Arizona that ultimately confirmed President Joe Biden's victory. During the Jan. 6 riot at the Capitol, he met with a top Trump official at the State Department to discuss “how the election was stolen.”

Trump, in return, has showered DePerno with his support. He endorsed his attorney general campaign nearly a year ago. In March, he held a fundraiser for DePerno at his Mar-a-Lago residence and stumped for him in Michigan a month later.

"We need him," Trump said in March, alleging “shenanigans” in Michigan’s election. “This is somebody that can fix it. There aren’t that many people around that can do it,” he said. “I talked him into doing it.”

'Insider threats'

The new allegations against DePerno come as election security experts have raised questions about whether individuals involved in Trump’s election conspiracies could pose “insider threats” or abuse their positions of authority in upcoming elections. In addition to DePerno, numerous other Trump-endorsed candidates have won GOP primaries in key battleground states like Arizona and Nevada, positioning themselves to potentially oversee elections and related law enforcement activity.

So far, there have been at least eight known attempts to gain unauthorized access to voting systems in five states, according to a Reuters investigation. That includes Colorado, where Mesa County Clerk Tina Peters faces several felony charges for her alleged role in allowing unauthorized people to break into her county’s election system in search of proof of the conspiracy theories.

In addition to requesting a special prosecutor, Nessel also sent a summary of initial findings to Secretary of State Jocelyn Benson.

“We have requested the appointment of a Special Prosecuting Attorney (“SPA”) to review the case for the issuance of possible criminal charges against several of the individuals involved. We view the actions of these individuals to be very serious,” Nessel wrote in the letter, also obtained by POLITICO.

On Monday morning, Benson released a statement of her own.

"There must be consequences for those who break the law to undermine our elections in order to advance their own political agendas," it read. "I'm thankful to Attorney General Nessel for conducting this investigation into the tampering of our secure voting machines and referring the case for prosecution."

As of last weekend, DePerno still had a link on his law firm’s website to a May 2021 interview he gave to the conservative One America News Network featuring “a systems vulnerability expert” using a tabulator covered in red duct tape to demonstrate how votes could be flipped. It is not clear from the video if that was one of the compromised machines. The attorney general’s office declined to comment.

Sequence of events

Nessel’s investigation began in February of this year after the secretary of state asked her office and Michigan State Police to look into reports that tabulating machines and data hard drives had been unlawfully accessed by an unnamed third party in Roscommon County.

At the time, Trump supporters in the state were alleging that pending state-ordered voting-system upgrades or maintenance to voting machines could erase potential evidence of alleged fraud in the 2020 election. Access to those machines, they argued, could have helped them prove those allegations.

Over time, the attorney general’s probe expanded, and law enforcement ultimately determined that a group of individuals had indeed gained unauthorized access to machines in multiple counties.

In the summary of findings, the attorney general repeatedly refers to successful overtures made by “Person 1” to county clerks to obtain vote tabulators, software and USB drives, claiming they were needed for an investigation “into election fraud.” It is unclear from the summary who Person 1 is.

“At the time the tabulators were obtained, Person 1 assured each separate clerk that they would be returned in just a few days,” the summary reads. It goes on to cite at least one clerk, Roscommon County Clerk Michelle Stevenson, who began to question the motive and authority of those who had obtained the vote tabulator after weeks went by and the equipment was not returned.

Days after the tabulators were finally returned to the Roscommon clerk in early April of 2021, DePerno issued a subpoena to Verizon seeking more detailed information on the tabulators. That subpoena included modem ID numbers of two Richfield Township tabulators and one from Roscommon County.

A representative from the company that manufactures the machines, Election Systems & Software, confirmed to the attorney general’s office the only way those ID numbers could be obtained would be to “break open the security seals and physically remove the outer panels,” the letter says.

ES&S also confirmed to the attorney general that it found no evidence in resulting software or firmware manipulation. All of the tabulators at issue were decommissioned before the Aug. 2 primary election and are being held as evidence for a special prosecutor.

Alleged co-conspirators

DePerno wasn't the only individual listed in Nessel's summary of her office's findings. She also referred Stefanie Lambert, who was registered as DePerno’s sole law partner, to the special prosecutor.

Others referred to the special prosecutor include Michigan state Rep. Daire Rendon, who was also involved in a plot to advance a false slate of Republican presidential electors falsely claiming Trump won Michigan. It is alleged by Nessel’s office that DePerno, Lambert and Rendon “orchestrated” the effort to obtain and access the tabulator. Barry County Sheriff Dar Leaf, who’s been pursuing his own “voter fraud investigation” after reviewing documents from Michael Lindell, the Trump-allied CEO of MyPillow, is also on the list referred to the special prosecutor.

Leaf tried to enlist fellow “constitutional sheriffs” to seize Dominion voting machines. Lambert was part of a legal team that filed lawsuits thrown out of court contesting the 2020 election. Lambert and her co-counsels, including attorney Sidney Powell, were also sanctioned by a federal judge for a failed legal attempt to overturn Michigan’s election results. Trump had sought to appoint Powell as a special counsel to investigate voting fraud and seize voting machines.

Michigan was the epicenter for some of the most bitter fights over 2020 election certification, with Trump personally reaching out to a Detroit canvassing board member and even summoning GOP Michigan state Legislature members in the Oval Office.

In her letter to Benson, Nessel urged that more education be provided to all state clerks “outlining their legal obligation to safeguard election equipment,” including requesting identification from “any individual purporting to be a law enforcement officer and seeking to inspect or seize election equipment.”