Sung Hui Kim has posted this draft on SSRN. Here is the abstract:
This Article examines the role of attorney Kenneth Chesebro in orchestrating the “fake electors plot” following the 2020 U.S. presidential election. It traces Chesebro’s transformation from a Harvard-educated lawyer with Democratic ties to a key architect of Donald Trump’s post-election strategy to derail the transfer of power to Joseph Biden. Part I provides a detailed chronology of Chesebro’s activities between November 2020 and January 2021, revealing how his legal advice evolved from preserving legal rights in Wisconsin to a coordinated plan to impanel alternate electors across multiple battleground states as a pretext for the Vice President to intervene unilaterally in the Congressional certification of the national election on January 6. Part II analyzes the professional discipline case against Chesebro under Model Rule 8.4(c). It examines the principal elements of Chesebro’s strategy and argues that his conduct appears to have involved dishonesty, fraud, deceit, or misrepresentation, warranting professional discipline. Part III interrogates Chesebro’s moral culpability, contending that his actions represent not merely a violation of professional conduct rules but a profound betrayal of public trust and democratic principles. This Article concludes that Chesebro’s moral culpability transcends his violations of the professional conduct rules. By pursuing increasingly aggressive strategies to overturn Biden’s legitimate victory without evidence of outcome-changing fraud, by offering a would-be autocrat with a blueprint for how to subvert the collective will of the voters in contravention of the U.S. Constitution, federal and state laws, and by using his legal expertise to peddle implausible theories designed to exploit procedural leverage to advance a naked power grab, he demonstrated a mind-blowing willingness to undermine democracy itself. Chesebro betrayed the public trust in ways that existing professional conduct rules, which lack explicit duties to preserve democracy, cannot adequately capture or address.
