1

4 SELECT COMMITTEE TO INVESTIGATE THE

5 JANUARY 6TH ATTACK ON THE U.S. CAPITOL,

6 U.S. HOUSE OF REPRESENTATIVES,

7 WASHINGTON, D.C.

10

11 DEPOSITION OF: KENNETH CHESEBRO

12

13

14

15 Wednesday, October 26, 2022

16

17 Washington, D.C.

18

19

20 The deposition in the above matter was held via Webex, commencing at 1:09 p.m.

21 Present: Representatives Aguilar, Lofgren, and Murphy.

 2

2 Appearances:

4 For the SELECT COMMITTEE TO INVESTIGATE

5 THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL:

7 STAFF ASSOCIATE

8 STAFF ASSOCIATE

9 SENIOR INVESTIGATIVE COUNSEL

10 SENIOR INVESTIGATIVE COUNSEL

11 INVESTIGATIVE COUNSEL

12 CHIEF CLERK

13 INVESTIGATIVE COUNSEL

14 PROFESSIONAL STAFF MEMBER

15

16 For the COMMITTEE ON HOUSE ADMINISTRATION:

17 -COUNSEL

18

19 For THE WITNESS:

20

21 ADAM KAUFMANN

22 DIANE CAMACHO

23 Lewis Baach Kaufmann Middlemiss

24 405 Lexington Ave. #64th

25 New York, NY 10174

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2 It is 1:09 p.m. on October 26, and this is a deposition of

3 Mr. Kenneth Chesebro conducted by the House Select Committee to Investigate the

4 January 6th Attack on the United States Capitol pursuant to House Resolution Number

5 503.

6 At this time, I'd like to ask you, Mr. Chesebro, to introduce yourself, stating your

7 full name and spelling your last name for the record.

8 The Witness. Yes. The full name is Kenneth John Chesebro, last name

9 C-h-e-s-e-b-r-o.

10 - Thank you very much. And at this time, I'd like the reporters to

11 swear the witness, please.

12 The Reporter. Do you solemnly declare and affirm under the penalty of perjury

13 that the testimony you are about to give will be the truth, the whole truth, and nothing

14 but the truth?

15 The Witness. I do.

16 - And I see, Mr. Chesebro, that you have counsel with you today.

17 Counsel, Adam, if you could introduce yourself and anybody else who's with you.

18 Mr. Kaufmann. Thank you-Yeah, Adam Kaufmann, K-a-u-f-m-a-n-n, of

19 the law firm Lewis Baach Kaufmann Middlemiss. Also in the room with me, although

20 not on video, is Diane Camacho, C-a-m-a-c-h-o, who is also an attorney in my firm.

21 Thank you very much. This is going to be a staff-led deposition,

22 which means that either I or my colleagues will be doing primarily leading the

23 questioning.

24 We do have Ms. Lofgren on, and other members are permitted to join as well.

25 And if they have any questions, we'll turn the floor over to any of them. Typically, the
 4

1 way that will happens, just for your awareness, would be that they turn on their cameras,

2 and then we would defer to them if they have anything to add.

3 As I mentioned before we went on the record, my name is I'm a

4 senior investigative counsel for the committee. And also in the room with me today are

5 professional staff member, to my right; and to my left,

6 investigative counsel; and to his left investigative counsel.

7 If anybody adds or joins from the committee virtually, I'll let you know about that

8 as well, primarily the members, and I'll do my best to update you there. Currently, we

9 do have other staff from the committee, including our chief clerk logged

10 into the deposition as well.

11 Under the House deposition rules, neither the committee members nor staff can

12 discuss the substance of testimony you provide today unless the committee approves its

13 release. And you and your attorneys will have an opportunity to review the transcript

14 once we're done.

15 Before we do begin, though, I do want to go over a few of the ground rules.

16 We're going to follow the House deposition rules that were provided to you and your

17 counsel with the subpoena. And under those rules, counsel for other persons, other

18 witnesses or otherwise, are not permitted to attend.

19 And so, I did get from Mr. Kaufmann others with him in the room. And, Mr.

20 Chesebro, I just ask you to confirm that there's nobody else in the room but you.

21 The Witness. Yeah, just me.

22 And you're not aware of anybody else who is listening in or

23 participating. That is correct?

24 The Witness. No, no.

25 Okay. There is an official reporter. There's actually a couple of

 5

1 them listed on the Webex platform there. They're going to be taking the official record

2 of the deposition/ and although there's more than one listed, only one will be taking the

3 official record at the time.

4 I'm sure you're well-aware of this and how reporters take down transcripts of

5 things, but I'll just remind you that because it is being taken down via stenography, that

6 you provide audible, verbal answers to all questions. And if you shake your head or

7 make some other gesture, I may just ask you to restate your answer so that we can

8 capture it appropriately in the record.

9 We do ask that you provide complete answers based on your best recollection.

10 And if the question is not clear, please ask for any clarification. If you don't know the

11 answer to something, please say so, that's fine, and we will move on.

12 You can only refuse to answer the question to preserve a privilege recognized by

13 the select committee. And if you do refuse to answer a question based on a privilege,

14 staff can either proceed with the deposition or seek a ruling from the chairman on the

15 objection. But if the chairman were to overrule an objection, you would be required to

16 answer.

17 And I understand you have a letter with an explanation about an intent to assert

18 Fifth Amendment rights. And that is slightly different than the privilege issue I just

19 mentioned before, but I did want to make sure that you're aware of all of the ground

20 rules that apply.

21 I do want to remind you that it's unlawful to deliberately provide false information

22 to Congress. Since this deposition is under oath, providing false information could result

23 in criminal penalties for perjury and/or providing false statements.

24 Is there anything that we went over that you don't understand or you have any

25 questions about?
 6

1 The Witness. No, I think it's clear. Thank you.

2 Okay.

3 And logistically, just let us know if you need a break or would like to

4 discuss anything with your attorneys, and we can certainly go off the record and permit

5 you whatever time is necessary for you to do that.

6 The Witness. Thank you.

7 We did receive a letter from your counsel this morning,

8 Mr. Kaufmann. We're going to enter it into the record as exhibit No. 31. We'll give

9 you an opportunity before we get into questions, though, to make an opening statement

10 or say anything about that letter otherwise before we get started.

11 So I'll turn it over to you or Mr. Kaufmann if you have al')y remarks you'd like to

12 give.

13 Mr. Kaufmann. If I may briefly,.you know, as we outlined in the letter, Mr.

14 Chesebro is faced with a tremendous amount of jeopardy for someone who was simply

15 doing his job as a lawyer. There are the two grand jury investigations ongoing in Fulton

16 County, Georgia, and by the Department of Justice.

17 And equally, Mr. Chesebro finds himself being vilified in the press, and there are

18 submissions to Bar committees suggesting that he be forced out from the Bar.

19 And all of this brings us to a point before the committee where there's a couple

20 of -- there are a number of constraints on him. One that we -- you and I have discussed

21 at some length is the attorney-client privilege and his ethical obligations of confidentiality

22 under the ethical rules for all attorneys.

23 And, as we've discussed, he has been expressly instructed by the Trump campaign,

24 which was his client, to maintain in full force any applicable attorney-client privilege or

25 confidentiality obligations. And so, absent some type of order to the contrary, he is
 7

1 ethically bound, at this point, to follow that advice.

2 In addition, because of the different public reports, political reports, ongoing law

3 enforcement investigations, there's a lot of crosscurrents at work, and a lot of interest

4 being paid to Mr. Chesebro.

5 And for those reasons, we have advised him that it is necessary for him to invoke

6 his Fifth Amendment protections at various times throughout the deposition and, of

7 course, we'll see how that progresses.

8 I should note that having said that, we have turned over to the committee a

9 number of documents that we felt there was no privilege that attached that were not

10 subject to any attorney-client privilege. And we had previously discussed whether there

11 was an act-of-production Fifth Amendment privilege for Mr. Chesebro.

12 You know, as part of his effort to be as -- I would say as cooperative as he can,

13 given the circumstances that I've described, we've not invoked any act-of-production

14 privilege so that he is able to continue to comply with the document production order.

15 And we do continue to work with the campaign to determine whether there are

16 documents that are not privileged that, therefore, should be turned over to the

17 committee.

18 I just think it's important that the record reflect this -- the events that surround

19 the deposition today and that it has been advice of counsel that leads Mr. Chesebro to

20 invoke the Fifth Amendment in certain areas as we go forward. Thank you.

21 Yes, thank you, Mr. Kaufmann. I appreciate those comments.

22 You're right, we have received some documents from you and Mr. Chesebro, and we look

23 forward to continuing to work through that process if there's any clarification on your end

24 what you're able to determine with respect to any applicable privileges.

25 I do know the attendant privilege issues are something that we have discussed
 8

1 and are working through to some degree, and there's some questions I know that you

2 have and that we have as well about the client and the scope of the representation that

3 govern some of the discussions that we've had. So we do have some questions

4 throughout here that hopefully we can elicit some helpful information about that.

5 And we also understand the position that you're in and that you've represented to

6 us in your letter about the discussions that you have had or recommendations you have

7 had -- I don't want to characterize them -- about the Fifth Amendment and how it might

8 apply here.

9 So, with that, I think we can get into the questions unless there's anything else.

10 Mr. Kaufmann. Thanks,_

11 Certainly.

12 EXAMINATION

13 BY

14 Q Okay. So what we're going to do throughout this deposition is put a few

15 exhibits up on the screen or show you an exhibit, rather, on the screen in front of you so

16 you'll be able to see it. And let us know if it pops up for you, if you have any trouble

17 seeing it.

18 But we're going to first bring up exhibit No. 1, and that's going to be the subpoena

19 that we issued, or the select committee issued for your attendance ultimately today.

20 So are you able to see what's up on the screen as exhibit 1?

21 A Yes. The subpoena dated July 22, which I read. I'm familiar with.

22 Q Okay. The subpoena itself is dated July 14th. You're exactly right, though,

23 that the first date of production there is July 22nd --

24 A Right, July. I received it sometime in July.

25 Q Yes, okay, very good. And do you understand that you're appearing
 9

1 pursuant to that subpoena today?

2 A Yes, I am.

3 Q Now, my goal is to ask questions that are relevant to the investigation with

4 the hope that you'll answer, understanding, just like the conversation that Mr. Kaufmann

5 and I just had on the record, that you may assert your Fifth Amendment rights or other

6 privileges that could apply.

7 But I will try to seek the basis for each objection that you might have, and we'll

8 just go through that and work through that process as we proceed throughout the

9 deposition.

10 Mr. Aguilar. I will note for you, Mr. Chesebro, that Mr. Aguilar, a member of the

11 select committee, has recently joined us as well.

12 Thank you for being here, Mr. Aguilar.

13 BY

14 Q The subpoena that we just showed as exhibit No. 1 required the production

15 of documents described in the schedule attached to the subpoena.

16 Did you understand that, Mr. Chesebro?

17 A Yes, I did.

18 Q And your counsel has produced to the committee a handful of emails that

19 involve certain Republican electors in States that former President Trump lost in the 2020

20 election, but other documents were withheld based on assertions of attorney-client

21 privilege or related privileges.

22 Do you understand that as well?

23 A I don't know the particulars of the privilege laws, but I do know that

24 there's -- I haven't reviewed that, but I do know that there's been certainly withholding

25 based on particular privileges or confidentiality provisions.

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1 Q Okay. Fair enough. Are you aware of any other nonprivileged documents

2 that are responsive to the subpoena that you have and that you haven't provided to the

3 committee?

4 A As I believe I indicated, I'm not sure to who that was reviewing this, in late

5 September, I -- I finished collecting all documents from any source I could find, except

6 there were certain paper documents, not a large volume and probably duplicating most

7 of the electronic documents that have already been provided to my lawyers and with the

8 privilege log, certain paper documents I had mailed the third week of September to

9 Puerto Rico, where I moved.

10 And I expected that I could finish that production on around September 20th,

11 when I expected to be in Puerto Rico. However, I had to wait two more weeks, because

12 of the hurricane.

13 So there's still a small amount of paper documents, probably handwritten notes,

14 other things that might be in addition to the electronic records that I still have to, I guess,

15 scan and then provide to counsel.

16 So that's the only -- that was -- I had fully intended to do that by the end of

17 September, but I -- but I was stuck in New York without the documents, and then there

18 were various other logistical problems in making the move.

19 So I just haven't -- so I just want to be transparent that, you know, I just -- so much

20 has been happening after my move that I haven't completed that, but I certainly will. In

21 the next few days, I'll complete that process and provide to Mr. Kaufmann.

22 So that's the only thing that I know of that wasn't already provided to him by the

23 end of September in electronic form.

24 Q Okay. I appreciate that, and I'll work with Mr. Kaufmann on any follow-up

25 that's necessary.
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1 A I suspect they're -- I just suspect they're of a nature, at minimum, work

2 product, but also they're probably privileged to the extent they're not already in

3 electronic form, things that I -- that were -- that I found in my electronic files and

4 provided.

5 So, I mean, I doubt there's much there that would be -- could be turned over

6 without some further review, but certainly I'll provide that all to Mr. Kaufmann.

7 Q Okay. That sounds great. Thank you very much, and I'll follow up with

8 him on that.

9 Now, looking at some of the documents and just helping us understand the

10 various places that responsive documents might be stored, we understand that at the

11 relevant period, which I'll define as roughly the election November 3, 2020, if not slightly

12 before, through January 2021, and we understand that you used an email address that

13 was a combination of Is that correct?

14 A Yes.

15 Q Did you use any other email accounts other than that one?

16 A I do have other accounts that I think that were revealed through

17 Mr. Kaufmann, but I double-checked and there was nothing in those accounts -- in other

18 words, to the best of my knowledge, everything related to this matter was to or from that

19 particular account.

20 And so, yeah, but I was careful to check all other accounts and make sure there

21 wasn't something that I had accidentally sent from another account.

22 Q Did you ever have an account, an email account to be specific, with the

23 Trump campaign?

24 A No.

25 Q We understand you had a personal phone that ended inllllduring the

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1 period I just mentioned, roughly November through January 2020 through 2021. Is that

2 correct?

3 A Yes.

4 Q Was that your personal phone?

5 A Yes.

6 Q Did you have any other phones that you used during that period?

7 A No.

8 Q Did you use any messaging applications, like Signal, Telegram, WhatsApp or

9 otherwise, on any of your devices to communicate with other people?

10 A I Message almost exclusively, unless somebody, you know, messaged me on

11 one of the other platforms and for whatever reason.

12 Q And did you have any other platforms installed on your phone?

13 A So What -- WhatsApp, I believe Signal, I believe Telegram. That's the only

14 ones I can think of.

15 Q Did you review those platforms for any documents or messages responsive

16 to the select committee's requests?

17 A I reviewed all the other ones and I found none, although theoretically, there

18 could be Signal communications that disappear. But I guess that's -- that there would be

19 no way I could, you know, retrieve that if that were the case.

20 And I just note for your awareness that Mrs. Murphy, a member of

21 the select committee, has also joined us.

22 Thank you, Mrs. Murphy, for being here.

23 BY

24 Q Okay. When and how, Mr. Chesebro, did you begin doing work that could

25 benefit the Trump campaign, either immediately before or after the November 2020
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1 election?

2 A I was contacted by a friend in Wisconsin that was involved in litigation

3 around November 9th, and that's when I started doing work to benefit the Trump

4 campaign.

5 Q Who was that friend?

6 A That was -- I think that's been discussed previously -- James Troupis, a

7 former judge in Wisconsin, who I believe was hired as the lead attorney for Trump in

8 Wisconsin.

9 Q And what did he say when he reached out to you?

10 A Well, he just wanted help from an appellate lawyer going forward to make

11 sure that he could adequately staff the case. And so, he asked me if I was willing to do

12 that, and I said I was. And I believe there's been some communication that we turned

13 over that relates to that and gives the specifics.

14 Q Was that request specific to litigation or did it involve other legal issues that

15 Mr. Troupis or others intended to raise on behalf of the campaign?

16 A He was -- he had been -- he was, I think at that time, deciding whether to go

17 forward to help with the recount, the recount of -- you know, the process of recounting

18 the State, and then whatever legal challenge might arise out of that. So that was the

19 exclusive -- that was what he wanted help with. He wanted to make sure that he had

20 adequate staffing to take it on.

21 Q Did Mr. Troupis mention anything to you about States other than Wisconsin

22 in this initial outreach?

23 A It was just focused on Wisconsin.

24 Q After you received that call on or about November 10th, what did you do?

25 A I started helping on his effort to recount Wisconsin.

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1 Q What types of things did you do to help?

2 A I think now Mr. Kaufmann probably has an objection.

3 Mr. Kaufmann. Yeah. I think at that point we would invoke attorney-client

4 privilege to the substance of the work that he did for the campaign.

5 Okay.

6 BY

7 Q On that point, did you ever have an engagement letter that memorialized an

8 attorney-client relationship with President Trump or the Trump campaign?

9 A There was a confirmatory email I think that was turned over, but no -- no

10 formal engagement letter.

11 Q That email came from Mr. Troupis?

12 A I believe, yeah. It was confirming that I was helping him on the case.

13 was -- I was doing the whole thing pro bona, without charging, so that apparently he

14 thought it was not necessary to have a formal retention letter, because the client

15 wouldn't have a monetary outlay.

16 Q Were there any other communications, either confirmatory or explaining the

17 scope of the services that you were going to be providing pro bona on behalf of the

18 Trump campaign?

19 A It was -- I think-- I don't recall the specifics. There was just an email

20 exchange between me and Mr. Troupis. Mr. Kaufmann I guess could address that in

21 terms of the documents that he may have forwarded.

22 Q Other than that email that you're discussing here, did you ever, later in time,

23 receive any other type of engagement letter or confirmatory email seeking your

24 assistance to help with legal services for the campaign?

25 A I think Mr. Kaufmann would review the specifics there as being -- being, you
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1 know, privileged in some way. I'm not sure I should answer.

2 Yeah, I just feel that that gets into then the specifics of internal communications

3 about representation. So I -- without -- without clarification from a court, I don't think I

4 should go into that.

5 Q Okay. And to be clear, I'm just asking about the scope of your

6 representation and any confirmatory documents that you may have or, if you don't have

7 them, received but recall about the services that you were asked to provide for Mr.

8 Trump or the campaign?

9 A Well, as I say up front, there was just an exchange of an email with

10 Mr. Troupis. I think if you can imagine that, as any kind of legal matter evolves, there

11 can be exchanges of information on what particular lawyers do. But that's something, I

12 think, would then get into the specifics of the representation, so I don't think I could

13 detail, you know, what they might be.

14 Q Okay. And as we go through today, we might be able to explore some of

15 that a little bit more. Who were your primary points of contact with the Trump

16 campaign?

17 A I -- I don't know that that -- I think that gets into the specifics of the

18 representation. So I don't -- I don't feel comfortable getting into that unless

19 Mr. Kaufmann believes it's something I can get into. That is, I think attorney-client

20 privilege, you know, in part, covers, you know, who on the team communicates with each

21 other.

22 Q Just for the record, I'm not asking with this question any communications

23 you may have had about litigation or other legal services. Just asking who was on the

24 team.

25 A Right. So maybe I should speak on the side with Mr. Kaufmann. Is that
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1 worthwhile?

2 Mr. Kaufmann. Why don't we meet and have a quick conversation.

3 Absolutely. Take your time. And I just remind you that hit the

4 mute button to make sure we can't hear you, and it probably makes sense to go off video

5 as well. And we'll go off the record.

6 [Discussion off the record.]

7 So we're back on the record. It's 1:33 p.m. and we're resuming

8 the deposition here.

9 The Witness. Yeah, that's very helpful. I'm not a trial litigator, so I don't know

10 how all privilege rules operate.

11 So -- but I can -- I can mention the people I spoke with, but -- and maintain the

12 privilege issues apparently, but not -- you know, not the substance.

13 So yes, my main points of contact in addition to being Jim Troupis would be Justin

14 Clark, who I guess is a key lawyer, or was a key lawyer for the Trump campaign. Those

15 would be the two main ones.

16 And then at some point -- I don't know how you say his name -- Boris Epshteyn,

17 also I think a top lawyer, was probably then, at a later point, was one of my key contacts.

18 There are others, but those would be probably the three main ones.

19 BY

20 Q Okay. What about Mayor Rudy Giuliani, was he a contact for you in the

21 Trump campaign?

22 A My recollection was -- I'm sorry, I just don't know how you say his last

23 name -- Boris Epshteyn was -- was kind of the person that would contact me more

24 than -- I wasn't directly in communication with Mayor Giuliani except on one occasion, I

25 believe. One, or at the most, two times I spoke with him.

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1 Q And I think we'll get to some of that.

2 You mentioned Justin Clark with the campaign. Did he ever give you any kind of

3 retainer letter or engagement letter or discuss the scope of your -- the legal services that

4 you might provide to the campaign?

5 A At one point -- yes, he did. At one point, he -- he retained me to do one

6 particular aspect of the case. He authorized me.

7 Q What was that?

8 A I -- Mr. Kaufmann, is that something I can answer?

9 Mr. Kaufmann. No. I think that's -- I think the substance of the work -- I think

10 the substance of the work is privileged --

11 The Witness. Yeah. So --

12 Mr. Kaufmann. -- and confidential.

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2 BY

3 Q Let me ask this: Was it related to litigation?

4 A Yes. I mean, yes. He -- certainly, I recall at one point that he specifically

5 authorized me to -- to take a step in litigation.

6 Q When was this conversation that you had with Mr. Clark that we've been

7 going around, or alluding to?

8 A Oh, yeah. So that was -- that was the last week or so, around the -- around

9 Christmastime, end of December.

10 Q Any conversation with Mr. Clark before then about representation for the

11 campaign, or legal services you might provide?

12 A There was at least one conversation in November that involved Mr. Troupis

13 and him, and -- and maybe one in December, but I just don't recall.

14 Q When did you begin, to the best of your recollection, communicating with

15 Mr. Epshteyn, Boris Epshteyn?

16 A Probably near the end of the first week of December, as far as I can recall.

17 Q And was it your impression that Mr. Epshteyn was working directly with Mr.

18 Giuliani related to Trump campaign issues?

19 A I know that he had -- I never knew his exact role, but I believe I -- yes, I was

20 under the impression, yes, that he had some connection to Giuliani.

21 Q Did you ever have any meetings with Mr. Giuliani?

22 A No.

23 Q And when I say that, I should also -- I should be specific and say, were you

24 ever at any meetings where Mr. Giuliani was also present?

25 A No, I've never -- never -- I've never met him.

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1 Q Did you have any meetings with the President?

2 Mr. Kaufmann. Dan, we're going to -- I think the idea, the concept of the people

3 with whom Mr. Chesebro met, we are going to invoke a Fifth Amendment privilege.

4 Okay.

5 BY

6 Q So, Mr. Chesebro, I understand what your lawyer just said. Ultimately,

7 that's your privilege to assert, and so if you would like to respond to any of our questions

8 being clear that you're applying the Fifth Amendment or asserting the Fifth Amendment,

9 we'd appreciate that, but we do need to have that come from you.

10 A Right. Yes, so I -- yeah, just on the advice of my lawyer, Mr. Kaufmann, I'm

11 invoking my Fifth Amendment privilege and respectfully decline to answer anything that

12 is, you know, related to anything besides some of these background questions that you've

13 asked about.

14 Q Okay. And just to be clear, the question -- I'll ask a similar question to what

15 I just asked, but for the record, did you ever have any direct communications with

16 President Trump regarding the election or the January 6th joint session of Congress?

17 A I guess I would take the Fifth Amendment right on that.

18 I'll stop there and see if anybody in the room has any questions

19 based on what we've just gone over.

20 Ms. Lofgren. Mr. Chesebro, I wanted to clarify that when you answered the

21 question posed about meetings that you are including virtual meetings. That would be

22 phone calls, Zooms, and other virtual presences.

23 The Witness. Oh, I see. No. For example, earlier there was a question about

24 Mayor Giuliani, and I definitely recall one phone conversation with him, maybe two, but

25 that's just the general question.

 20

1 But as questions about what lawyers I communicated with, as I understand it, are

2 not -- that's not privileged. But anything related to the client or the strategy, things like

3 that, you know, I believe there's a privilege and then there also are Fifth Amendment

4 considerations. But I've been very candid about phone calls with -- with Mayor Giuliani

5 or Justin Clark, things like that.

6 Ms. Lofgren. No, I'm not suggesting otherwise. I just wanted to clarify that a

7 meeting would include virtual meetings, phone calls, Zooms, and the like.

8 The Witness. Right. And actually, this is before -- was it before COVID?

9 guess it -- anyway, so there were no -- I don't recall anything on Zoom, any video. So it

10 would just be phone calls.

11 Ms. Lofgren. Thank you.

12 Thank you, Ms. Lofgren.

13 BY
14 Q One of the things I wanted to talk to you about today, Mr. Chesebro, is State

15 legislatures and the campaign's interactions with State legislatures, or State legislators.

16 And I see, Mr. Aguilar, you just came off camera, so I'll turn the

17 floor over to you.

18 Mr. Aguilar. I'm sorry to interrupt,_

19 Mr. Chesebro, you talked about Signal communications. With respect to the

20 lawyers that you have mentioned, can you tell us what those -- how many of those

21 conversations? Do you have group threads among those lawyers that you mentioned,

22 or are they individual conversations via Signal?

23 I realize that the contents has disappeared, but can you characterize what your

24 Signal threads, you know, were on the lawyer -- with the other lawyers?

25 The Witness. I believe, subject to Mr. Kaufmann's instruction, I can -- I can

 21

1 confirm my recollection of having contacted somebody or been contacted through Signal,

2 but not the substance. That would be -- that would relate to attorney-client privilege,

3 work product.

4 My recollection is on only one occasion, somebody involved with the Trump

5 campaign wanted to switch to Signal, you know, I mean, for whatever reason.

6 And -- but it was one person and it was a day or two. And it was then, at most, one or

7 two short chains about something sensitive, and I don't recall the details. But I don't

8 recall who it was and I don't recall, you know, anything about it, because it would have

9 disappeared.

10 So -- but it was -- it was I would say at least 97, 98 percent of any text

11 communications were on iMessage, and that's been preserved and it has a privilege log.

12 So, you know, I know it's -- you wonder what it was and I just don't recall, but it

13 wasn't -- it wasn't anything significant, in my judgment.

14 Mr. Aguilar. Again, I'm not asking for content. I'm just asking for --

15 The Witness. I just don't recall why the person wanted to switch or what it

16 involved.

17 Mr. Aguilar. Were there any group Signal threads? You can create a group

18 within Signal --

19 The Witness. I think -- I think what I'm recalling is two people, so -- and

20 somebody who switched to Signal. But I just -- I can't recollect exactly what it involved.

21 So it presumably was something the person felt was sensitive, but I -- I don't recall why.

22 Mr. Aguilar. Understood. Thank you, sir. Appreciate it. Thanks, -

23 Thank you, Mr. Aguilar.

24 BY

25 Q Mr. Chesebro, who were the people that wanted to go to Signal that you just
 22

1 described?

2 The Witness. Mr. Kaufmann?

3 Mr. Kaufmann. I think that's okay,_ Ken.

4 The Witness. I believe -- I believe Mike Roman, who's a nonlawyer, somebody

5 involved in logistics of the campaign, I believe he was -- he was either the person who

6 suggested it or the person who switched. So that's my --

7 BY
8 Q And you mentioned that there may have been one other person involved in

9 that group thread or thread, however you want to describe it. Who was that other

10 person?

11 A I mean, it's possible I could -- you know, I guess the substance, right.

12 So the -- it's -- my recollection is Boris Epshteyn, that there was some communication

13 involving the two of us. I can't -- I can't be absolutely certain, but I believe at least one

14 of them or probably both were involved in Signal communication that I recall.

15 Q And do you remember roughly when this was?

16 A I believe it was late December or early January.

17 And, Mr. Aguilar, I see you came back on camera.

18 Mr. Aguilar. One more question: If it's available to you now, sir, realizing that

19 the content has disappeared, if you pull up your Signal app right now, it would show the

20 individuals that you were conversing with. It wouldn't show the content, but it would

21 show the individuals.

22 The Witness. I see.

23 Mr. Kaufmann. Could I talk to Mr. Chesebro for a moment, please, as we're

24 doing this?

25 The Witness. On the side, right.

 23

1 Absolutely. Take your time.

2 [Discussion off the record.]

3 Let's go back on. We're resuming the deposition at 1:48 p.m.

4 The Witness. Yes. In answer to your question, I've looked on my phone.

5 There's no record of any participants. So, I mean, I don't have anything I can add.

6 But this was not a significant communication. I was just trying to be complete.

7 I recall there was something, and I just don't recall the subject. And if it had been

8 something really significant, I think I would have remembered the subject.

9 Thank you, sir, appreciate it.

10 Mr. Aguilar. Thank you, sir, appreciate it.

11 Sorry,_

12 No, that's quite all right. Thank you, Mr. Aguilar.

13 BY

14 Q So, Mr. Chesebro, we understand that as early as mid-November of 2020,

15 the Trump campaign's election challenges were proceeding along two tracks: One to

16 challenge the election in court via litigation, the other to ask State legislatures to appoint

17 electors for Mr. Trump despite the election outcome.

18 Are you familiar with both of those tracks that I just described?

19 A As far as what I knew at the time, I think, on advice of my counsel, I have to

20 invoke my Fifth Amendment privilege. That's getting to the substance of various

21 charges.

22 Q And when you began -- I understand that you're invoking the Fifth

23 Amendment, Mr. Chesebro. I'm still going to ask some questions just to see if there's

24 anything that you think you can answer outside of that.

25 So when you began representing Mr. Trump's campaign in November 2020, were
 24

1 you aware of any strategies specifically about State or local officials and seeking their

2 assistance in appointing Trump electors in States that Mr. Trump had lost?

3 The Witness. Mr. Kaufmann, is that something that I can address? I'm just not

4 sure.

5 Mr. Kaufmann. If the query goes to whether he was aware of it from the

6 campaign, then I think it's an attorney-client privilege question.

7 The Witness. Yeah. So my answer is that when I started on this around

8 November 10th, I didn't know any more than anyone would know from the news, and all I

9 knew was my help was requested for litigation in Wisconsin, and I offered to provide it.

10 BY

11 Q Now, outside of public reporting, are you aware of any efforts to encourage

12 State officials not to certify Joe Biden's victory in a specific State?

13 A Anything I would have become aware of would have been related to my

14 representation, and so that would, I think, be covered by attorney-client privilege.

15 Q And I'm not asking specifically about communications for the intent or to

16 receive or obtain information about giving legal advice.

17 Just generally, were you aware of any efforts to encourage State officials not to

18 certify Joe Biden's victory, outside of any privileged communications you may have had?

19 A Yeah. At some point there were reports about it, and I knew about as

20 much as anyone who was following the news would know about it. But I don't -- I don't

21 know -- there's nothing more I can add to that. Obviously, I heard about that at some

22 point in November.

23 Q Let's pull up exhibit No. 2. Can you see exhibit No. 2 that's on the screen

24 there?

25 A Yeah. So it's some sort of article by John Eastman.

 25

1 Q Right. This is a November 5th memo by John Eastman entitled "The

2 constitutional authority of State legislatures to choose electors." And I'll represent to

3 you that this argues that the 2020 election was tainted, both by State election law

4 violations and voter fraud, and that if State legislatures found that the election was too

5 fraught with the risk of fraud to properly be certified, it argues they should exercise their

6 prerogative to legislatively designate a set of electors.

7 I'm happy to scroll through this, but looking at it up on the screen, have you ever

8 seen this memo before?

9 The Witness. Mr. Kaufmann, can I answer?

10 Mr. Kaufmann. You can answer, yes.

11 The Witness. I don't recall -- I don't recall seeing it.

12 B~

13 Q Did you ever discuss the ideas that I just described, that fraud or vote

14 irregularities, reported or otherwise, in the States as a result of the 2020 election,

15 warranted legislative exercise of -- or, excuse me, warranted State legislatures choosing

16 their own electors, and did you discuss that with Mr. Eastman?

17 Mr. Kaufmann. Objection.

18 The Witness. Yeah, that -- I think that would be covered by -- by -- that's

19 privileged, work product privileged communication with other lawyers representing a

20 client.

21 BY

22 Q Was it your understanding that John Eastman was representing the

23 campaign at the same time you believe you were representing the campaign?

24 A My understanding is he's a lawyer for the campaign in some capacity.

25 Q Okay. And this memo specifically is dated November 5th. Is it your

 26

1 understanding that around this time, Mr. Eastman was working with the campaign?

2 A I have no idea when he started becoming a lawyer. At some point, I'm

3 assuming by December, but I -- as I say, this -- I don't -- I don't think I've ever seen this

4 memo.

5 Q Rudy Giuliani and others appeared at a number of purported hearings before

6 State legislators in Pennsylvania, Arizona, Georgia, among others. Were you aware of

7 any campaign strategies related to these purported hearings with State legislators in

8 those States?

9 A Anything I was or wasn't aware of I think would bear on strategy with the

10 campaign, and that would be privileged.

11 Q Okay. And I'm not asking if there's a communication or asking you to

12 divulge the substance of communications, just whether you're aware of any strategies

13 that related to having Mr. Giuliani or others appear before State legislators after the

14 election?

15 A Other than --

16 Mr. Kaufmann. I think that that also -- the concept of what Mr. -- sorry, the legal

17 strategy of the campaign would be a privileged matter and confidential.

18 The Witness. Right. I don't think I can answer that other than, like, anyone

19 following the public reports would be aware of, I was aware of various things happening.

20 BY

21 Q There were a number of phone calls and meetings with State and local

22 officials that President Trump and others with the Trump campaign had, including Mr.

23 Giuliani, and we understand that those were related to the idea of having legislatures

24 designate their own electors, or take other actions related to the election.

25 Were you aware of the fact of any of these calls or meetings with State and local
 27

1 officials?

2 A You're asking if I was aware from a nonpublic source?

3 Q That is correct.

4 A Well, the thing is if -- on any question like this, I'm just trying to be -- just be

5 up front. Any question on this where the answer would be no, I still couldn't answer it

6 because when -- because, you know, just in general, the subject matter of strategies that

7 are nonpublic involving the campaign I can't address because of the privilege issue.

8 Q Okay. And I think just to address the one thing you said, if the answer is

9 no, I don't think that it would invoke any kind of -- or involve any kind of privileged

10 communication. So if the answer is no, we would ask that you say that, regardless of

11 whether or not there's some global strategy, but --

12 A Yeah, but the problem is then -- then -- I'll defer to Mr. Kaufmann on this -- if

13 I start saying yes or -- if I start saying no to things that are no, then it implies the ones I

14 don't answer the answer is different.

15 So I just feel I have to stay away from the subject unless Mr. Kaufmann, you know,

16 reassures me that I'm not waiving the client's privilege. I'm just trying to be careful,

17 because I don't want to answer questions that make me look better if it might

18 waive -- waive the client's privilege.

19 Q Just very quickly, if I may respond, then, Mr. Kaufmann, I'll let you go. The

20 privilege covers communications that you had with somebody you're providing legal

21 advice to with whom you're in an attorney-client relationship.

22 And so, the absence of a communication, I don't think our position would be that

23 that involves any type of recognizable privilege. So I think you would have to disclose

24 that if the answer is truthfully no.

25 I'm happy, Mr. Kaufmann, if you'd like to weigh in or if you'd like to

 28

1 spend some time speaking with Mr. Chesebro about that.

2 Mr. Kaufmann. I'm thinking through the issues,_ as we sit here. And I'm

3 also thinking that, you know, beyond attorney-client privilege, there's the Rule 1.6

4 obligation to maintain confidentiality. And that's broader than merely the privilege.

5 And I can appreciate what Mr. Chesebro just said, which is even where an answer

6 might be good for him, if it's describing the contours of what was or was not his client's

7 legal strategy, I think that Rule 1.6 would prevent him from responding.

8 The Witness. My view on that is also that to the extent that a client is benefited

9 from the view that the client got all sorts of -- all sorts of advice on all sorts of issues, then

10 not seeking advice on something that might be important, you know, that that, you

11 know -- that if he learned the client did seek advice on certain things, that just -- that feels

12 like it's confidential what the client wanted advice on.

13 I understand that you're asserting privilege there, and this may be

14 something that Mr. Kaufmann and I can chat about in a moment, but if you could bear

15 with us just a moment, I'm going to go on mute very quickly.

16 Mr. Kaufmann. Ken, I'm going to go on mute for a second as well.

17 [Discussion off the record.]

18 All right. Thank you for your indulgence. Mr. Kaufmann, we're

19 ready whenever you are. And, Mr. Chesebro, we're ready when you are.

20 Mr. Kaufmann. Do you want to go off the record for a moment,lllland

21 stay on -- I don't --

22 Yeah, we can go off the record. That's fine. So let's go off the

23 record.

24 [Discussion off the record.]

25 Let's go back on the record. It's 2:02. We're resuming the

 29

1 deposition of Mr. Ken Chesebro.

2 When we left off, there was a discussion about your ethical obligations under the

3 rules of professional conduct where, presumably, where you're licensed in reference to

4 Rule 1.6. And I just want to clarify that it's your counsel's position that Rule 1.6 prevents

5 Mr. Chesebro from answering questions and providing information in the face of

6 compelled testimony as a result of Congress' subpoena in this matter.

7 Mr. Kaufmann. Thanks,-So our position is that is correct. Looking at

8 Rule 1.6 -- and I'm looking at the ABA model rule, because, frankly, Mr. Chesebro is

9 admitted in a number of States and there is a question as to which individual State, but

10 they all, with different -- slightly different contours, reflect this: A lawyer shall not

11 reveal information relating to the representation of a client without informed consent.

12 And then one of the exceptions is to comply with other law or a court order.

13 And here, I don't think that compulsion by Congress, it's certainly not an

14 enumerated exception to the general principle of confidentiality. And absent a court -- I

15 don't know what other law is. You might take the position that other law is being

16 subpoenaed by Congress.

17 I would want to see something, a legal holding or ethical opinion to that effect.

18 To my way of looking at it, our position is that it would require a court order to say that

19 the ethical obligation of client confidentiality is overcome merely by being compelled to

20 give testimony in any proceeding.

21 So it's the province of the courts to do that, and I think that's the

22 appropriate -- that's the position we're taking at this point.

23 Okay. And I appreciate you clarifying your position there. And

24 that, of course, relates to other issues we described at the beginning about the scope of

25 representation, who the client was, when the representation started or ended, et cetera.
 30

1 But we understand that position, and I appreciate you putting on the record. To

2 the extent that there's going to be follow-up, I'll follow up, Mr. Kaufmann, with you later.

3 But I feel --

4 Mr. Kaufmann. Thank y o u , _

5 -- at this point, we should go ahead and move beyond that.

6 BY
7 Q I will ask a very specific question: Were you, Mr. Chesebro, consulted in

8 any way with respect to calls or meetings with State and local officials about the 2020

9 election? And specifically, those calls or meetings would involve people from the Trump

10 campaign or Mr. Trump himself.

11 A Mr. Kaufmann off the record, assured me that's something I could ethically

12 answer. And the answer is no, I had no communications regarding any of that.

13 Q Do you know who was involved in those communications or meetings?

14 A No. I mean, beyond anything that was publicly reported, I have no -- no

15 other information.

16 I'll pause there to see if any of the subject matter we've just been

17 over, including before our brief recess, if there are any questions about that. Okay.

18 BY
19 Q So I do want to talk to you about something that's related to this issue of

20 State legislatures choosing their electors, but slightly different, and that is, having groups

21 of individuals meet and cast purported electoral college votes for President Trump in

22 States that President Trump had lost. I'm going to call those, as we go through this,

23 alternate electors.

24 Do you understand kind of the definition I just gave to the alternate electors?

25 A Yes.
 31

1 Q Can you please describe your role in the plan to have individuals meet and

2 cast electoral college votes for President Trump in States that he had lost?

3 A That's --

4 Mr. Kaufmann. - I ' m going to interrupt for a moment. I'm sorry, Ken, if I

5 may.

6 The Witness. Yeah.

7 Mr. Kaufmann. We're -- because of the various factors that we set forth in the

8 letter, at this point I would advise Mr. Chesebro to respectfully invoke his Fifth

9 Amendment privilege and decline to answer questions in this area.

10 The Witness. Yes, and I do invoke my Fifth Amendment privilege on that

11 particular area.

12 BY

13 Q Okay. And, again, I understand that, and we're going to show you some

14 documents and proceed through some of the questions, understanding that you may be

15 invoking as well.

16 So if we could pull up exhibit No. 3. This is a December 11th email from you to

17 Josh Findlay and other members of the RNC or RNC employees, those that involve email

18 addresses ending in [Link].

19 And in this email, it explains that Mr. Troupis was the one who floated early on the

20 idea of electors voting on December 14th, and that's in that first paragraph there in the

21 email.

22 My first question to you is, who is Josh Findlay?

23 A I believe he's a lawyer with the campaign.

24 Q Is that someone with whom you interacted in the postelection period, so

25 after November 3, 2020?

 32

1 A I don't recall if I was on any phone call with him, but I interacted in some

2 fashion.

3 Q And would that include emails?

4 A Yes.

5 Q How about text messages?

6 A Possibly he was on group -- group texts, but I don't -- I don't recall. It

7 would be infrequent, if at all.

8 Q And what was his role if the alternate elector effort, as I just defined it a

9 moment ago?

10 A Well, that's where I would have to invoke the attorney-client privilege as far

11 as any specifics, any strategy discussions, and in addition to invoking the Fifth

12 Amendment.

13 Q In this email, you wrote that Mr. Troupis was the one who floated early on

14 the idea of electors voting on December 14th. What do you recall about Mr. Troupis

15 and him, quote, floating this idea?

16 A Well, I would have to invoke the privilege, but also I don't know that I

17 can -- consistent with the attorney-client privilege, I don't know that I can even

18 acknowledge any particular emails that would be attributed to me or to others involved.

19 Q Did you have any kind of attorney-client relationship with employees at the

20 RNC?

21 A That's something that I would have to defer to Mr. Kaufmann on in terms of

22 some sort of joint privilege. I don't have any view on that as -- as -- I just don't have any

23 expertise.

24 And, Mr. Kaufmann, I'd just ask you, for purposes of this

25 conversation and this email specifically, are you asserting attorney-client communications
 33

1 privilege with respect to this email that includes employees with the RNC?

2 Mr. Kaufmann. We are. Thank y o u , _

3 If we could pull up exhibit No. 4.

4 BY

5 Q Can you see exhibit No. 4 up on the screen, Mr. Chesebro?

6 A Yes, I can.

7 Q This is a memorandum dated November 18, 2020, to Mr. Troupis from you,

8 Kenneth Chesebro. And on page 1, you wrote to Mr. Troupis, quote: "You asked for a

9 written summary of the legal analysis underlying my suggestion during our conference

10 call."

11 So can you please tell us about the discussion on the conference call in which you

12 and Mr. Troupis discussed an alternate elector strategy?

13 A Well, of course, in addition to the Fifth Amendment privilege, I would note

14 the privilege issue that I think -- you know, I don't want to be pedantic, but I don't think I

15 can even acknowledge there were documents that have not been held by any court to be

16 nonprivileged or confidential, I don't think I can even acknowledge having had a role in

17 either sending or receiving them, just to make sure that I maintain the privilege for my

18 client.

19 Q So just to be clear, you're asserting the Fifth Amendment privilege and an

20 attorney-client privilege, communications privilege to that question about this memo?

21 A Yes, indeed.

22 Q You've mentioned a call here, specifically a conference call. Approximately

23 on what date, if you can recall, did that call take place?

24 A Of course, I'd have to invoke the privilege on that.

25 Q What privilege, Mr. Chesebro?

 34

1 A Well, the -- the -- I would invoke -- I guess the Fifth Amendment privilege

2 about this entire subject would cover it and, therefore, nothing else would be relevant.

3 Q On page 1 of this memo, you wrote that these alternate electoral votes

4 should be considered timely so long as the President received a court decision, or perhaps

5 a State legislative determination rendered after December 14th.

6 Without getting into any privileged communications, was it your assessment that

7 a competing slate of electoral votes could only be counted by Congress with the approval

8 of court or State legislature in this memo?

9 Mr. Kaufmann. If I may, we're going to invoke multiple objections to questions

10 relating to this document. And I'll, of course, let Mr. Chesebro adopt this on the record,

11 but the position would be that there -- we would invoke his Fifth Amendment privilege,

12 we would invoke attorney-client privilege, and we would also invoke Rule 1.6 on this line

13 of questioning. Thank you.

14 The Witness. And I would affirm that as my position on this kind of memo

15 attributed to me and anything similar.

16 BY
17 Q And that's perfectly fine. And if you'd like to make it easier on yourself and

18 just adopt an objection or just say Fifth or whatever it might be to the questions, that's

19 perfectly fine. We're still going to go through the questions here.

20 And so what happened, to the best of your knowledge, after you sent this

21 memorandum to Mr. Troupis?

22 A Again, Fifth and privilege and Rule 1.6.

23 Q And when you say "privilege," you're saying attorney-client communications

24 privilege?

25 A Yes, indeed, yes, including work product, the -- working on the, you know,
 35

1 litigation on the case.

2 Q Okay. And just for clarity on the record, our position would be on at least

3 one aspect of the work product is that it has to be in anticipation of litigation, and that

4 anticipation merely of the joint session of Congress is not sufficient. I believe a judge in

5 California has explained that already.

6 So, to the extent that applies or you invoke that, we would just note our position

7 there as well.

8 If we could pull up exhibit No. 5, please. This is an email dated December 6th at

9 1:50 -- excuse me. I'm looking at the middle one that's 1:54 p.m., but there are other

10 dates as well. And it's an email involving William Bock, Justin Clark, Matt Morgan, Jenna

11 Ellis, and they're attaching your November 8th memo and writing, quote: "Are steps

12 being undertaken to ensure that Republican electors in Arizona, Georgia, Michigan,

13 Nevada, Pennsylvania and Wisconsin cast their votes and transmit them as required on

14 December 14th?"

15 Mr. Kaufmann. - i s Mr. Chesebro a party to this email? I can't see the top.

16 He's certainly not on the 1:54 email. I don't --

17 No, he is not. And I'm just going to ask a few questions about this.

18 The email also says: "I expect this has likely already been addressed and the strategy

19 determined, but I did not want to be negligent in failing to pass on Ken's memo." And it

20 references you, Mr. Chesebro, elsewhere in the email.

21 Later, I'll represent to you and as seen up here, John Eastman forwarded the email

22 to somebody named Michael Farris, Jay Sekulow, Kurt Olsen, Larry Joseph and Mark

23 Martin, and wrote: "This is huge and hugely important. Let's make sure the various

24 State electors are aware of the absolute necessity of meeting on the 14th, casting their

25 votes, and otherwise complying with the transmittal requirements of Federal law."
 36

1 So my first question is, do you know how your memo ended up getting to

2 Mr. William Bock?

3 A No.

4 Q And did you ever discuss that memo, the November 18th memo, with any of

5 the folks listed there, John Eastman, Jay Sekulow, Kurt Olsen, Mark Martin, or others?

6 Mr. Kaufmann. Objection.

7 A Yeah, I think the -- I would -- I would invoke the Fifth on that as well.

8 Mr. Kaufmann. And attorney-client privilege.

9 The Witness. And attorney-client privilege regarding any attorney for the Trump

10 campaign.

11 BY

12 Q Your phone records reflect three calls with Mr. Back's law firm on December

13 3rd, one on December 4th, and another on December 7th, which is around the time of

14 these emails.

15 Were those calls, in any way, related to the proposal that you laid out or described

16 in the November 18th memorandum?

17 A I don't recollect, but I was working with him on litigation about Wisconsin.

18 So I'm inclined to think that was related to what we were doing in Wisconsin.

19 Q And the "him" in that statement, that answer that you just gave, you were

20 working with him, that was with Mr. William Bock?

21 A Yes, Mr. Bock.

22 Q Now, your original memo, the one we just looked at focused on Wisconsin.

23 In this email, though, Mr. Bock references the possibility of electors meeting in six States

24 that I read off earlier. What was the rationale for expanding the plan beyond

25 Wisconsin?
 37

1 A I would have to invoke not just the Fifth Amendment, but also

2 attorney-client privilege and Rule 1.6 as to the substance of any strategy.

3 Q And what was John Eastman's involvement in coordinating efforts to

4 convene electors? He was somebody listed on the email we just looked at.

5 A I, again, invoke the attorney-client privilege relating to -- apparently, he was

6 an attorney for the Trump campaign.

7 Q If we can pull up exhibit No. 6. This is an email dated December 7th from

8 John Eastman to Rudy Giuliani, whose email address is the one you see there,

9 - in the "to" line. That email attached your November 18th memo and

10 wrote: "Here's the memo we discussed."

11 Do you know how Dr. Eastman ended up circulating your email to Mr. Giuliani?

12 A No.

13 Q In the email, Mr. Eastman referenced the discussion that he had with Mr.

14 Giuliani about the memo, or at least he said: "Here's the memo we discussed."

15 Did you ever get a readout of a call or communication that Mr. Eastman had with

16 Rudy Giuliani about your November 18th memorandum?

17 A I don't think I can answer that, because of the attorney-client privilege.

 38

2 [2:20 p.m.]

3 BY

4 Q Did you ever discuss this November 18th memo with Rudy Giuliani?

5 A I think that would be covered by attorney-client privilege, and also this

6 entire subject matter is covered by my Fifth Amendment privilege.

7 Q We understand from phone records that you had a call with Mr. Giuliani on

8 December 10th for about 14 minutes, at 8:54 at night, and then on December 11th for

9 about 3 minutes. Were either of those calls related to the alternate electors strategy as

10 laid out in your November 18th memo or any later memos on this topic?

11 A I have to invoke the Fifth Amendment and attorney-client privilege as to

12 those calls.

13 Q Did you discuss your memo, that one we just looked at, November 18th,

14 with anyone on the campaign team including Justin Clark or Matt Morgan?

15 A I would have to invoke attorney-client privilege on it -- on that as well.

16 Q Okay. If we could pull up exhibit No. 7. As that's coming up, I'll represent

17 to you that on December 8th The New York Times published an excerpt of an email from

18 Jack Wilenchik to Boris Epshteyn, Christina Bobb, Dennis Wilenchik, and others regarding

19 your proposal.

20 First thing I'll ask is, what was Christina Bobb -- or who -- do you know who

21 Christina Bobb is?

22 A I believe she was an attorney in some capacity for the Trump campaign.

23 Q Did you interact with her directly at all?

24 A There -- I -- my recollection is there may be an email or two that she might

25 have been on, but I don't believe I personally interacted with her.
 39

1 Q And just to clarify, so do you remember any phone conversations or text

2 communications that you may have had with Ms. Bobb?

3 A No, I don't recall any phone conversation or text communication directed to

4 her or from her to me, but there might've been some communication where she was on

5 an email chain.

6 Q Did you ever have any meetings, including virtual meetings, where Ms. Bobb

7 was also attending?

8 A No.

9 Q Did you ever speak to Ms. Bobb about your proposal to have alternate

10 electors meet in States that Mr. Trump had lost?

11 A No, I never spoke to her at all.

12 Q Who's Jack Wilenchik?

13 A He's an attorney in Arizona who, I believe, represented the Trump campaign.

14 Q Did you ever have any communications with him, either email, text, phone

15 call, or in person?

16 A At least one, maybe two phone calls, and some email communications.

17 Q When did those phone calls occur?

18 A I believe the second week of December.

19 Q Were they related to the plan to have electors meet and cast votes for

20 Trump in States that he had lost?

21 A I can't get into the substance of the communication. That would be

22 covered by attorney-client privilege, as I believe he was a Trump attorney.

23 Q And do you believe he's a Trump attorney working on these issues?

24 Because I -- my understanding is that he did work on litigation in Arizona and represented

25 a number of folks out there with the --

 40

1 A Right, yeah, he was focused on Arizona, yeah. So he was not a Trump

2 campaign staffer. He was an outside attorney that had been retained by the Trump

3 campaign. So anything of substance that I communicated with him I think would be

4 covered by attorney-client privilege. And then, of course, this entire subject, I'm taking

5 the Fifth Amendment privilege on.

6 Q Do you know if he was involved at all in coordinating alternate electors in

7 Arizona or others -- other States? Excuse me.

8 A I believe that would be covered by privilege in terms of his role.

9 Q What kind of privilege? Just to be clear for the record.

10 A Just that -- that whatever decisions the Trump campaign made to have him

11 be involved in any particular area, that would be, you know, relate to strategy or just be

12 something that I think --

13 Mr. Kaufmann. He just wants you to clarify between attorney client or Fifth

14 Amendment.

15 The Witness. Yeah, attorney-client and 1.6, yes.

16 BY
17 Q Okay. So if we can go to page six of this exhibit. This includes a published

18 version of an email that Mr. Wilenchik sent to Mr. Epshteyn and others, and it

19 references -- the reason we're bringing this up -- a call with you. Said, quote, "I just

20 talked to the gentleman who did that memo, Ken Chesebro." And that's in the "PS" line

21 at the bottom of that published email.

22 Can you please tell us what you discussed with Mr. Wilenchik about the memo

23 that Jack Wilenchik is referencing?

24 A As far as any discussions with him, though, I would invoke the Fifth

25 Amendment privilege. I would also invoke attorney-client and rule 1.6 privilege.
 41

1 Q In the email, Mr. Wilenchik wrote that your proposal, quote, is basically the

2 all of us -- and then in parentheses -- oh, I'm sorry. If you go to the next page. Yes,

3 there it is. I'm sorry. On that same line in the PS. Let me start over.

4 So he wrote there -- if you're following along, it's in the bottom

5 paragraph -- wrote, quote, the proposal is, quote, basically that all of us, GA, WI, AZ, PA,

6 et cetera, have our electors send in their votes even though the votes aren't legal under

7 Federal law because they're not signed by the governor.

8 Is that what you discussed with Mr. Wilenchik in the call he referenced?

9 A I'm not at liberty to discuss what he and I discussed in terms of strategy on

10 the campaign, nor to, you know -- nor to address whether his email accurately

11 summarizes anything we discussed. Given the attorney-client privilege, I can't get into

12 it; and also, I'm taking the Fifth Amendment privilege as well.

13 Q Mr. Wilenchik also wrote in that that Members of Congress could potentially

14 argue that they're not bound by Federal law because they're Congress and make the law,

15 et cetera. Was this a reference to any analysis that you had done related to the

16 Electoral Count Act?

17 A I don't know why -- I don't know what that's with reference to.

18 Q Okay.

19 A I mean, I was not copied on the email. So, I mean, all I -- all I know is what

20 was published in The New York Times, apparently this leaked email.

21 Q Mr. Wilenchik also wrote, quote, we would just be sending in fake electoral

22 votes to Pence so that someone in Congress can make an objection when they start

23 counting votes and start arguing that the fake votes should be counted.

24 So my question is, are you aware of a switch at any point in time from

25 these -- these purported electoral college votes in States that Mr. Trump had lost
 42

1 requiring a court or legislative determination that they are, in fact, valid and that

2 Mr. Trump had won in that State, and the switch from that to the switch that Congress

3 alone could decide whether to count those votes?

4 A I can't get into any knowledge I might have of what the campaign thought or

5 when on whatever -- any particular strategy. So I have to invoke the attorney-client

6 privilege and rule 1.6 on that.

7 Q Another person identified in this story is Arizona GOP chair Kelli Ward. Did

8 you ever have any communications with Kelli Ward in the post-election period?

9 A I believe there were emails that are in the privileged log or maybe even

10 turned over where she's recipient or maybe a Senator, so I recall the name.

11 Q Okay. And tell us about the communications that you had with her as best

12 as you can recall.

13 A I have to invoke the Fifth Amendment privilege on that and so that I don't

14 waive that as to this entire subject matter. But I do believe that there are emails that

15 have been turned over that would -- that would give you that answer better than I can

16 recall presently.

17 Q Approximately when datewise was it decided to move forward with the

18 strategy to have people meet and cast electoral college votes for Mr. Trump in States that

19 he had lost?

20 A Again, that would be, I believe, internal campaign discussions that I wouldn't

21 be at liberty to disclose based on the attorney-client privilege and rule 1.6, but also it's

22 covered by my Fifth Amendment privilege.

23 Q How did you learn that the campaign would be moving forward with this

24 strategy?

25 A That would -- that'd be privileged in terms of attorney-client privilege and

 43

1 rule 1.6.

2 Q At some point earlier, you mentioned Mr. Mike Roman. I understand he

3 had a role in coordinating electors meetings in various States and certain aspects of the

4 plan to have people meet and cast purported electoral college votes for Mr. Trump.

5 Was he involved in that effort to your -- the best of your knowledge?

6 A Testifying -- testify -- testifying before you or being interviewed before you, I

7 would have to -- I would have to invoke the privilege in terms of the campaign strategy

8 and also the Fifth Amendment. But I do believe there are documents produced that

9 would -- would answer the committee's interest in Mr. Roman and his role.

10 Q Who else was responsible that you're aware of for coordinating electors

11 meetings in the various contested States that we've gone over here?

12 A Again, from memory, I don't think I'd be at liberty to disclose that, but I

13 believe documents have been turned over that will give extensive detail on the

14 involvement of various people connected to the campaign.

15 Q And just for clarity in the record, you're unable to disclose for what purpose?

16 A It just feels -- it feels for me to -- to reflect on my memory of who I was in

17 touch with would be me disclosing from my own mind confidences of the campaign.

18 However, for the committee to have properly subpoenaed documents, which apparently

19 have been determined not to be privileged, and so they're produced, for you to be able to

20 read through all the documents that Mr. Kaufmann, I believe, has forwarded, is not me

21 disclosing something that's confidential of my own initiative, but it's simply the

22 committee getting access to documents that happen to exist which happen not to be

23 privileged.

24 And what I'm saying is those documents have much more detail than anything

25 that I recall now. So it's -- conveniently, the committee can get the information it seeks
 44

1 in more detail than I could give now, but it's different for me to disclose it sitting before

2 you.

3 Q And that's fine. And just to drill down on the basis for the objection, is

4 it -- or privilege assertion, is it -- are you asserting the Fifth Amendment as well as

5 attorney-client privilege?

6 A The entire subject. And so, in theory, one -- my attorney could have said to

7 produce the documents would be something that would be protected by the Fifth

8 Amendment, but as he explained in the start, in an effort to be as helpful as possible, the

9 documents are being produced without any constraint of the Fifth Amendment. But I

10 would maintain the Fifth Amendment as to my own personal testimony.

11 Q Okay. Thank you. I appreciate that -- having that clarity in the record to

12 the questions.

13 If we could pull up exhibit No. 8, please.

14 All right. So this is a December 10th, 2020, email from you, Mr. Chesebro, to

15 Kathy Berden. If we go down just a bit. There we are, at the bottom of page one.

16 And you say that several people with the Trump campaign, including Justin Clark and Nick

17 Trainer, gave me your contact information and asked me to help coordinate with the

18 other five contested States.

19 So, first of all, who is Nick Trainer?

20 A I don't -- I don't recall who Nick Trainer is presently, but what I'm saying is

21 that all these documents that have been turned over, you know, they -- I mean, they

22 speak for themselves. I don't know that I can add anything, nor would I feel free to,

23 given the attorney-client privilege and given the Fifth Amendment privilege I'm asserting.

24 Q With those assertions -- yeah, go ahead. I'm sorry.

25 Mr. Kaufmann. Sorry. Were these -- were these among the documents that we
 45

1 disclosed to y o u , _

2 This is a separate production that the select committee has

3 received.

4 Mr. Kaufmann. Okay. All right. I have nothing to add.

5 BY
6 Q This is you reaching out to people in Michigan or a person in Michigan at

7 least. Did you do this for electors in other contested States, including Arizona,

8 Pennsylvania, Georgia, or others?

9 A So my answer, again, would be I'm invoking the Fifth Amendment privilege,

10 and I'm also invoking the attorney-client and rule 1.6 privileges in terms of my testimony

11 before the committee today. However, I think Mr. Kaufmann can confirm that there's a

12 very large number of documents relating to the number of States that I believe were

13 probably more comprehensive than anything you currently have, and that will answer

14 your questions about what may or may not have happened in various States involving me.

15 So I think-- I think there's really no need to go into the detail about particular States

16 because you'll have quite a bit of material to go through.

17 Q In this email you say, I'm preparing drafts of the documents that the electors

18 in Michigan could sign to effect their votes in case that would be helpful as a start.

19 Did you work with anybody to prepare the documents that the electors in States

20 that Trump had lost used to cast purported electoral college votes?

21 A Again, I don't feel I can answer that without waiving my Fifth Amendment

22 right, which I'm maintaining, and also the attorney-client privilege issues. So it's one

23 thing for me to ensure that Mr. Kaufmann could turn over all these documents and not

24 assert any act of production privilege under the Fifth Amendment, but it's just another for

25 me to then be asked questions about details that happen to be in the documents that the
 46

1 committee could read. So we have to draw a bright line there to -- you know, to ensure

2 that I'm not waiving any privilege that I have.

3 Q That's perfectly fine. And if you just want to assert those -- the privileges,

4 that's perfectly fine and we can move on. I just need to do it for clarity in the record to

5 know when something would fall under your Fifth Amendment privilege or a different

6 kind of privilege that I may be able to work through with Mr. Kaufmann or elsewhere.

7 A Great. Thank you.

8 Q So sometime before December 9th, it appears that you received a request to

9 prepare additional memoranda on the alternate electors strategy. And namely, we've

10 received copies of a December 9th memo and a streamlined version of your memo from

11 November. So the question is, who asked you to prepare any additional memoranda, if

12 anyone?

13 A I would have to invoke the Fifth Amendment privilege on that and also

14 attorney-client and rule 1.6 privilege.

15 Q Bear with me just one moment, Mr. Chesebro. Thank you.

16 [Discussion off the record.]

17 Mr. Kaufmann. Ken, if you need a break, let us know, okay.

18 All right. Thank you for your indulgence here. Yeah, and if at

19 any point you need a break, just please do let us know, as Mr. Kaufmann just mentioned.

20 BY

21 Q We can pull up exhibit No. 9, please.

22 All right. Can you see exhibit No. 9 on the screen there, Mr. Chesebro?

23 A Yes, I can.

24 Q So this is a memo, again, identifies as coming from you to Mr. James Troupis,

25 dated December 9th, 2020. And this memo, I'll represent for the record and for you,
 47

1 summarizes the purpose of the alternate elector plan, which is to, quote, validly cast and

2 transmit votes so that the votes might be eligible to be counted if later recognized, and in

3 parentheses, by a court, the State legislature, or Congress, as the valid ones that actually

4 count in the Presidential election.

5 And then the memo goes on to evaluate certain State laws governing electoral

6 certification and electoral college meeting, concluding that the alternate slates would be,

7 quote, unproblematic in Arizona and Wisconsin, slightly problematic in Michigan,

8 somewhat dicey in Georgia and Pennsylvania, and very problematic in Nevada. And, of

9 course, that is not the entirety of the memo but certain portions from it.

10 So unlike the November memo that we looked at earlier, this adds upfront the

11 possibility that Congress alone could determine on January 6th that the purported

12 electoral college votes for Trump in contested States could be counted. Why that

13 addition upfront in this memo?

14 A I think I'd have to invoke the Fifth Amendment privilege and also

15 attorney-client privilege in terms of the work product involved and strategy, that sort of

16 thing.

17 Q Okay. And some witnesses who have testified to us have described a shift

18 in analysis during that period, the late November, early December period, where the

19 object of the strategy was to submit the electoral votes to Congress not just cast them as

20 a contingency for a court or even a State legislature. Is that consistent with your

21 recollection of events in that period, so November and December of 2020?

22 A If I recollected anything on the matter in that level of detail, I wouldn't be

23 free to disclose it given the attorney-client privilege.

24 Q This memo, as I mentioned earlier, addressed State law provisions regarding

25 electoral college electors and how or when they meet to cast electoral college votes.
 48

1 Who, if anyone, asked you to analyze the various State laws governing those types

2 of meetings?

3 A If I -- if I -- even if I could recall now, I wouldn't be free to disclose the

4 internal communications within the campaign.

5 Q And just for the record, based on what privileges are you asserting?

6 A Attorney-client privilege and rule 1.6.

7 Q Did you say attorney-client and rule 1.6?

8 A Yes.

9 Mr. Kaufmann. I would also advise Fifth Amendment.

10 The Witness. Yeah, and the Fifth Amendment, the entire subject matter.

11 mean, I don't want to belabor it, but, yeah, I'm very limited in what I can do, other than,

12 you know, urge you to look at the documents that have been produced, which

13 are -- which are free from the Fifth Amendment constraint.

14 One thing I will mention about that memo is the version produced from my files,

15 the digital version, has hyperlinks that I believe there's maybe a version that doesn't have

16 active hyperlinks because it was scanned. So that may be helpful to you in terms of

17 understanding the document.

18 BY

19 Q I appreciate that. And were those hyperlinks in the original that were sent

20 to the campaign?

21 A Yes. I mean, that's -- and that's why that version -- the version of my files

22 would be a superior -- more authentic version, I believe.

23 Q In that memo, it analyzes various laws, like I just mentioned, in Pennsylvania,

24 Wisconsin, Michigan, Georgia, Arizona, Nevada, and New Mexico. I don't think all of

25 those were analyzed specifically. But how did the campaign choose to execute this plan
 49

1 in those States?

2 A Yeah, that would be a matter that would be covered by attorney-client

3 privilege and rule 1.6.

4 Q I went over earlier some of the conclusions that it would be slightly

5 problematic, somewhat dicey, or very problematic -- to use the words in the memo -- in

6 various States. Did anyone express concerns that executing this alternate elector

7 scheme would violate State or Federal law?

8 A Unfortunately, I'm unable to answer that under rule 1.6 and the

9 attorney-client privilege.

10 Q Are you asserting the Fifth Amendment as well?

11 A Yes, to the entire subject matter. Thank you for clarifying.

12 Q In Georgia and Pennsylvania, one of the issues identified in this memo was

13 that governors -- excuse me, governors would need to ratify alternative candidates to be

14 electors. To your knowledge, did anyone consider in contacting Governor Kemp in

15 Georgia or Governor Wolf in Pennsylvania to see if they would ratify any necessary

16 alternate electoral college votes?

17 A Again, I'd have to decline to answer based on the Fifth Amendment and

18 attorney-client privilege.

19 Q And similarly, in Nevada, the memo recognized that the secretary of state

20 has to be president -- excuse me, present for the meetings of electors. Do you know if

21 anyone ever considered reaching out to secretary of state in Nevada to seek her

22 pa rtici pat ion?

23 A Same answer, the Fifth Amendment and attorney-client privilege.

24 Q At this point, I think it might be a good time to take a quick break, maybe

25 5 minutes, if that's okay with you, and then we'll enter, I think, probably the second half
 50

1 of the deposition.

2 The Witness. Okay.

3 Mr. Kaufmann. Great.

4 All right. Let's go off the record, and we'll see you back in

5 5 minutes.

6 [Recess.]

7 Let's go back on the record. It's 2:48 p.m., and we're resuming the

8 deposition of Mr. Kenneth Chesebro.

9 At this point, I'm going to turn it over to my colleague,

10 Okay. Thanks, -

11 BY

12 Q And good afternoon, Mr. Chesebro. I had a few questions to follow up on

13 line of questioning related to this electors issue. First among them is this:

14 The select committee has received testimony that in mid-December 2020, RNC

15 Chairwoman Ronna McDaniel received a phone call from President Trump and Dr. John

16 Eastman in which they discussed an approach to the electors strategy and requested

17 Ms. McDaniel's assistance in facilitating that strategy. Do you have any knowledge

18 outside of public reporting about that phone call that President Trump and Dr. Eastman

19 had with Ronna McDaniel?

20 A So this is a situation as we discussed earlier where I -- that even in situations

21 where maybe I don't have knowledge, I can't get into whether or not I did because then it

22 would then imply that where I don't answer similarly, then -- I mean -- so my answer was I

23 can't get into anything I may have known privately at some point related to any strategy

24 the campaign has, even if it was early when I may not have known as much as I learned

25 later.
 51

1 So I can't really answer what I knew at that time because it would -- I don't want

2 to waive -- do anything that would waive my client's privilege as to -- or give any hint as to

3 whether I knew other things where I'm not answering. So my -- a blanket declining to

4 answer based on the attorney-client privilege and rule 1.6 is the safest way I know to

5 avoid waiving any of my client's privilege, even -- even on issues where it would help me

6 personally not to have -- you know, to be able to say I had no particular involvement in

7 something. So I think I just feel I have to be careful not to waive my client's privilege.

8 Q Thank you for delineating that position, Mr. Chesebro. And I believe that

9 has made the select committee's position on this point already on the record,

10 but I'll just reiterate that it's our position that the lack of existence of an attorney-client

11 privilege communication is a question that you can answer.

12 Another thing that I just wanted to note for the record based on what I heard

13 from your answer, my question is whether you have any knowledge presently about that

14 phone call that President Trump and Dr. Eastman had with Ms. McDaniel, not specifically

15 whether you had any knowledge of that phone call at the time?

16 A Right. But were you saying -- I mean, I sort of -- I don't want to be

17 pedantic, but from a non-public source? Because at some point I heard that there was

18 something in mid-November, you know, from a public source, but that wouldn't be

19 helpful to you.

20 Q Correct. I'm only asking whether you have any knowledge about that

21 phone call other than through public reporting.

22 A Right. And so my -- just to be safe, I have to say that anything I might have

23 learned from non-public source I feel would be internal campaign communications that I

24 wouldn't be free to divulge, unless it was something in a document which had been

25 turned over as nonprivileged.

 52

1 Mr. Kaufmann. I just -- if I can, I just want to augment that with my prior point

2 about legal strategy and rule 1.6 applying to make it very difficult for an attorney to

3 answer about what was or was not communicated to him. Even if the lack of a

4 notification is not privileged, there's still a rule 1.6 concern about discussing whether or

5 not things were raised with counsel. And so I think that's part of what Mr. Chesebro is

6 invoking here.

7 The Witness. Yeah, I'm just trying to be careful. I'm not an expert here, but my

8 sense is if a court were to order me to answer no to every subject where I had nothing to

9 do with it, then I would feel that that's something I could do because then there wouldn't

10 be the 1.6 issue. But absent that, I just feel 1.6 is so unclear that I just have to be sure

11 that I'm not -- I'm not waiving something that the client has a right to require me to

12 maintain.

13 BY

14 Q Understood, both Mr. Kaufmann and Mr. Chesebro. And on the 1.6 rule

15 specifically,-has already identified what I think our position on that question

16 is. You know, I think it's reflected in the record, and hopefully we don't have to sort of

17 relitigate it each time that it arises. So, with that, I'll move on.

18 Other than the phone call that President Trump and Dr. Eastman had with

19 Ms. McDaniel, are you aware of any actions that President Trump took directly to

20 facilitate the strategy to have electors meet and cast votes in the States that he lost?

21 And, again, this question is outside of any public reporting.

22 A Right. So anything I would know of what President Trump personally or

23 any of his campaign staff would've done to facilitate the alternate electors voting, I

24 wouldn't be free to disclose it because it'd be clearly privileged and confidential. And

25 plus, rule 1.6 would cover it. But also, I believe my Fifth Amendment privilege covers
 53

1 this entire subject matter in terms of any involvement with the alternate electors.

2 Q The five major contested States in the electoral college in the 2020 election

3 were Pennsylvania, Wisconsin, Michigan, Georgia, and Arizona. Together, those five

4 States comprise 73 electoral votes, and yet subtracting those 73 electoral votes from Joe

5 Biden's 306-vote margin would yield 233 electoral votes, which would still be one vote

6 more than the 232 votes that President Trump ultimately received in the electoral

7 college.

8 Were Nevada and New Mexico chosen as vehicles to cast alternate electoral votes

9 specifically because more electoral votes were needed to put President Biden's vote

10 count beneath President Trump's?

11 A If I had any information about why the Trump campaign picked particular

12 States to have alternate electors vote, I wouldn't be free to disclose that because it would

13 be nonpublic and therefore privileged under attorney-client and 1.6, but also the subject

14 matter is something that I'm taking the Fifth on.

15 Q Okay. In your view, what was the significance of the Texas v. Pennsylvania

16 litigation as it pertained to the alternate electors strategy?

17 A If I had a view on that either at the time or now, I think that would

18 be -- that's something that I couldn't disclose given the campaign's attorney-client

19 privilege and 1.6 confidentiality rights, but also it's covered by the Fifth Amendment

20 privilege that I'm pleading.

21 Q What about the pendency of other Federal or State litigation that -- that was

22 pending at the time -- or not pending at the time that electors met on December 14th,

23 how did that affect the legal analysis surrounding the strategy if at all?

24 A Again, attorney-client, rule 1.6, Fifth Amendment.

25 Mr. Kaufmann. That's a very sort of broad question too. It's hard to -- it would
 54

1 be hard to answer that question, I think.

2 Okay. And I can certainly rephrase it, although I suspect that

3 the answer will be the same.

4 Mr. Kaufmann. It will, so --

5 1think we can move on.

6 BY
7 Q So, Mr. Chesebro, we understand that the campaign's legal personnel,

8 namely Justin Clark, Matt Morgan, and Josh Findlay, removed themselves from the work

9 surrounding alternate electors following the Supreme Court's refusal to hear the Texas v.

10 Pennsylvania litigation. Did any of those three people express any concerns about

11 continuing with the alternate elector plan to you during that time?

12 A I wouldn't be free to disclose any communications they had with me related

13 to the alternate elector plan, unless until a court were to hold that, you know, if they

14 testify on the subject, then perhaps there was some sort of waiver, at least a limited

15 waiver of attorney-client privilege or rule 1.6 privilege. But unless and until a court

16 determined that there -- that is a subject that I could address, I wouldn't be free to do

17 that. And also, there's the Fifth Amendment issue that I'm also invoking.

18 Q All right. We understand that around this time, those three individuals

19 handed off responsibilities for the coordination of this strategy to you. Is that correct?

20 A That's a subject where I might personally want to address it, but I'm

21 constrained by the fact that my client has told me to assert all possibly available

22 attorney-client privilege and rule 1.6 issues, unless and until the client waives it or a court

23 determines otherwise, and so I'm just simply not at liberty to address that subject matter.

24 Q When did that handoff of responsibilities take place?

25 A I'm not at liberty to even address whether there was any handoff of
 55

1 responsibilities. That would involve internal campaign communications among lawyers

2 and would -- I'd have to have -- I'd have to be cleared I think by a court to be able to

3 address that -- that subject, and then, of course, I'm also asserting the Fifth Amendment

4 privilege.

5 Q Did you have any discussions with Mayor Giuliani or anyone else on the

6 Trump campaign legal team about continuing the strategy related to alternate electors

7 after Mr. Clark, Morgan, and Findlay transferred responsibilities to you?

8 Mr. Kaufmann. Objection to the form of the question -- that's okay. Go ahead.

9 Withdrawn.

10 The Witness. Yeah. I don't think I can -- you know, I can certainly testify -- or I

11 can certainly comment on whether I communicated with particular individuals at a

12 certain date and time, but I'm not allowed to address what I communicated with him

13 about, and so I don't think I can answer that question.

14 Mr. Kaufmann. And I would just note for the record that we may not agree with

15 the contention that such responsibility was transferred. That assumes something that

16 we may not agree with.

17 The Witness. Yeah, that's why I tried to indicate that -- in my earlier answer --

18 Mr. Kaufmann. You did.

19 The Witness. -- I'm not free to address whether, in fact, that was true.

20 BY
21 Q Did you communicate with Rudy Giuliani about alternate electors after at

22 any point when Mr. Clark, Mr. Morgan, or Mr. Findlay may have or may not have

23 removed themselves from responsibilities relating to the strategy?

24 A Again, so I don't -- I don't personally have a recollection about any details

25 about when I spoke with Mr. Giuliani, but I believe-mentioned some

 56

1 communication with Mr. Giuliani at a timeframe, second week of December, and so it

2 may be before or after whatever period of time you're discussing.

3 So you might have some -- I mean, whatever the record is as to when I

4 communicated with him, the record is. But I can't discuss any -- anything of substance I

5 might've -- might have talked with him about given the attorney-client privilege, 1.6, but

6 also I'm invoking the Fifth Amendment.

7 Q Let's bring up Exhibit 30.

8 While we're doing that, Mr. Chesebro, I just want to ask you, based

9 on the question before this one, we have received testimony and information suggesting

10 that responsibilities were transferred from Mr. Clark and others to you and others who

11 were working with you regarding the alternate electors scheme as we defined it before.

12 Do you disagree that those responsibilities were, in fact, transferred? And I just want to

13 give you an opportunity, I guess, to correct any or provide different information than

14 what we've already received.

15 The Witness. Right. Well, my answer would be that if I disagreed, I would not

16 be at liberty to personally answer that and say things that might be favorable to myself,

17 because unless and until the Trump campaign were to authorize me to discuss whether

18 there was transfer of responsibility or a court were to hold, for example, that there was a

19 waiver of any attorney-client privilege on that subject because one or more of its

20 attorneys had already, you know, publicly discussed the subject, unless one of those

21 things happens, I can't --1 can't discuss the subject.

22 I mean, I do believe that I'm -- I'm bound by my obligation to the client to respect

23 confidences on the subject even if -- even if there's information that's partial, that is

24 unflattering to me that I could correct. I just feel obliged to maintain the privilege,

25 because I -- I have a professional obligation to maintain the client's privilege unless and
 57

1 until it's pierced in some fashion, even -- even if it hurts me personally. I just feel that's

2 the proper way to go.

3 Okay. So it sounds like attorney-client privilege, 1.6, and the Fifth

4 Amendment all apply to the answer to that question?

5 The Witness. To that answer, right. I mean, all this -- the entire subject matter

6 is Fifth Amendment. But if the Fifth Amendment weren't a concern, then I guess I would

7 be free to address the question you asked, if the privilege were either waived or found to

8 be inapplicable as to the subject.

9 Okay. Thank you.

10 The Witness. I'm not expert enough to know whether whatever was said by a

11 Trump attorney would be somehow putting at issue the subject and therefore waiving

12 the privilege. That's way above my pay grade.

13 BY

14 Q Okay. Let's pull up Exhibit 30. This is another article published by The

15 New York Times containing excerpts of various email communications related to the

16 alternate electors strategy. On page two of that article, Mr. Chesebro, is an email that

17 the Times indicates that you wrote to Rudy Giuliani and other members of the legal team

18 asking whether they planned to seek certiorari after an unfavorable ruling in the Arizona

19 Supreme Court.

20 And in the email you write, quote, do you still plan to do this? If so, can you get

21 the cert petition on file by Monday? Monday being December 14th, 2020. Reason is

22 that Kelli Ward and Kelly Townsend just spoke to the mayor about the campaign's request

23 that all electors vote Monday in all contested States. Ward and Townsend are

24 concerned it could appear treasonous for the AZ electors to vote on Monday if there's no

25 pending court proceeding that might eventually lead to the electors being ratified as the
 58

1 legitimate ones.

2 Did you write this email?

3 The Witness. Mr. Kaufmann, if this is part of what's being produced, then there's

4 no problem with that, right?

5 Mr. Kaufmann. Ken, I would advise -- I don't know -- this is from The New York

6 Times. I don't --

7 The Witness. Here's how I would answer it. If I -- any emails that I -- I wrote to

8 electors or their representatives in particular States where there was the alternate

9 elector plan being considered, those are being produced or have been produced pursuant

10 to the subpoena. And so by definition, because they're being produced to my lawyers,

11 that will authenticate them. And so there's no need for me really to discuss. You have

12 a complete file of everything that was available in my files. So -- yeah.

13 Mr. Kaufmann. And I would advise on that particular question, first, I don't

14 know -- this is from a newspaper article so I don't know what the email is. But generally

15 speaking, on that subject, I would advise you to invoke, and to this particular question,

16 advise you to invoke the Fifth Amendment privilege.

17 The Witness. So I am -- so, again, the -- what I -- the -- what I'm distinguishing is

18 between me invoking the Fifth Amendment in testimony to the committee but then

19 acknowledging that certain things that were not covered by the Fifth Amendment that

20 were properly produced according to subpoena, that those are available to the

21 committee to review. And so that would -- obviously anything that I was involved in

22 sending [inaudible] files would be better than something in the newspaper.

23 BY

24 Q I'll represent to you, Mr. Chesebro, that you did not produce this document

25 to us. So if that affects your answer --

 59

1 A No, no, no. Right. Not this -- right. So what I'm saying is that there's a

2 complete file of communications to the several States where there are electors that end

3 up on --

4 Mr. Kaufmann. Ken?

5 The Witness. -- ballots.

6 Mr. Kaufmann. Yeah, so I think that point has been made --

7 The Witness. Yeah.

8 Mr. Kaufmann. -- that we did produce those, and those do speak for themselves.

9 This was not produced by us. And so is it fair to say that you are invoking Fifth

10 Amendment, rule 1.6, and attorney-client privilege?

11 The Witness. Right, yes. As -- regarding, you know, New York Times excerpt

12 from email, I would invoke the Fifth Amendment and attorney-client privilege and 1.6.

13 BY

14 Q In the message you write, quote, I just got off the phone with Mayor

15 Giuliani.

16 What if anything can you tell me about the conversation that you had with Mayor

17 Giuliani referenced in this message?

18 A Oh, I'm sorry. So, again, so in terms of testimony from my own memory on

19 the subject, I take the Fifth and invoke attorney-client privilege and rule 1.6. But

20 completely separate from that, the committee has -- can -- you know, has the actual

21 communications, which aren't subject to the Fifth Amendment, to review at its leisure.

22 Q But the select committee doesn't have a record reflecting the contents of a

23 phone conversation that you had with Mayor Giuliani, so I'm asking what you can tell us

24 about that conversation.

25 A Yeah. And I can't answer that because that would relate to attorney-client
 60

1 privilege information, and also I'm invoking the Fifth Amendment regarding my own, you

2 know, personal recollection.

3 Q Okay. So the discussion in this email is about whether the campaign is

4 planning to appeal an unfavorable decision from the Arizona State Supreme Court. Is

5 the purpose of doing so in this case so that litigation in Arizona would still be considered

6 pending or ongoing at the time that the electors met and cast their votes on

7 December 14th?

8 A To the extent the purpose might not be clear from the text of the

9 communication itself, I, you know, decline to answer on the Fifth Amendment and

10 attorney-client privilege.

11 Q At the bottom of this message, you write that Ms. Ward and Ms. Townsend's

12 concerns are a valid point. Why did you think that?

13 A Again, that would -- that would -- that would involve privileged information,

14 attorney-client and work product, and also the Fifth Amendment also applies.

15 Q Were there other States where the status of litigation was doubtful such that

16 you or others on the campaign would have to take steps to ensure that it was ongoing on

17 December 14th?

18 A Again, Fifth Amendment and attorney-client privilege.

19 Q Okay. In this email, you also reference a conversation that Ms. Ward and

20 Ms. Townsend had with Rudy Giuliani. Can you provide me with any information about

21 what you know about that conversation between Mayor Giuliani and Kelli Ward and Kelly

22 Townsend?

23 A Even if I could recall anything beyond what was in the email, I wouldn't be

24 free to divulge it under attorney-client privilege, and also I'm invoking the Fifth

25 Amendment.
 61

1 Q Okay. In this message, you recounted Ms. Ward and Ms. Townsend's

2 concerns that it could appear treasonous for Arizona electors to vote on the 14th if there

3 was no pending court proceeding. Tell me more about the concerns that they relayed

4 to you.

5 A Again, even if I remembered anything beyond the email, I wouldn't disclose

6 that given attorney-client privilege and given the Fifth Amendment.

7 Q Did any electors or their representatives ever express concerns to you about

8 the legality of the strategy that you and the Trump campaign were proposing?

9 A I would invoke the Fifth Amendment privilege on that. And also, it's less

10 clear whether there's an attorney-client privilege there, but it's unclear -- if it's an elector

11 not a Trump campaign official involved, then I'm not sure that the attorney-client

12 privilege could apply, but definitely the Fifth Amendment.

13 Q Okay. Did you or others on the campaign have to take any steps to

14 reassure them that the strategy you were proposing was legal, appropriate, or otherwise?

15 A I would invoke the Fifth on that, although there may be information in the

16 materials that have been produced that may -- that may answer the committee's inquiry.

17 Q Sure.

18 Mr. Kaufmann. We'll also just invoke attorney-client privilege and rule 1.6.

19 BY

20 Q Okay.

21 A Both those as well.

22 Q For instance, in one of the exhibits that-covered with you earlier,

23 one of the other New York Times articles, it references an email that Christina Bobb sent

24 on December 12th referring to Doug Mastriano. And in that message she wrote, quote,

25 Mastriano needs a call from the mayor. This needs to be done. Talk to him about the
 62

1 legalities of what they are doing. Electors want to be reassured that this process is legal,

2 essential for greater strategy.

3 Did you ever hear, outside of public reporting, that Senator Mastriano had

4 concerns about the legality of the elector strategy?

5 A I'm not sure I recollect anything -- that particular communication or who

6 Mastriano was. But anything I would've heard outside non-public information would be

7 privilege under attorney-client privilege and rule 1.6, but also the subject matter is

8 covered by the Fifth Amendment privilege I'm asserting.

9 Q And other than what's been publicly reported, are you aware of any

10 communications between Rudy Giuliani or anyone else on the legal team and Senator

11 Mastriano related to this issue?

12 A If I was aware, that would be covered by attorney-client privilege and rule

13 1.6.

14 Q Okay. Who chose the language that was used in the electoral certificates

15 that the electors used to cast their purported votes for President Trump in the States that

16 he had lost?

17 A I would invoke the Fifth Amendment on that and also attorney-client and

18 rule 1.6, but some of the documents produced you may -- may answer that question.

19 Q Were you aware of concerns from any of the purported electors or anyone

20 else about the specific language that was used in the electoral vote certificates?

21 A I would invoke the Fifth on that, attorney-client privilege, rule 1.6. But,

22 again, some of the documents may well provide the information that's relevant to the

23 committee on that.

24 Q Okay. Let's bring up Exhibit 12. While we're pulling it up, I'll represent to

25 you that this is a December 12th, 2020, email that you wrote to Mike Roman and Josh
 63

1 Findlay regarding some proposed revisions to the Pennsylvania electoral certificates.

2 So you write, here is my suggested language for dealing with the concern raised in

3 the PA conference call about electors possibly facing legal exposure at the hands of a

4 partisan AG if they seem to certify that they are currently the valid electors.

5 What was the legal exposure that concerns were raised about in the context of

6 this conference call?

7 A Even if I recall the specifics, I wouldn't be free given attorney-client privilege,

8 rule 1.6 to address it, but also I'm invoking the Fifth Amendment. But it seems like there

9 are various documents that will help flesh out the committee's interest in the subject that

10 have been provided.

11 Q Okay. So below the message that you wrote, you proposed some revised

12 language in the electoral certificate. And how did the revisions that you proposed

13 address the legal exposure in your understanding?

14 A You know, even if I could refresh my recollection and review it all and give a

15 coherent answer, I would decline to answer based on the Fifth Amendment. And also, I

16 feel like it involves internal campaign lawyering, which is protected by the attorney-client

17 privilege and rule 1.6.

18 Q Okay. So we've obtained copies of the purported electoral certificates that

19 were submitted by the electors in these various States, and this revised language that you

20 proposed was submitted in two of the States, Pennsylvania and New Mexico, but not in

21 others. Why was it not submitted or used in certificates in the other States?

22 A I would love to answer that, but I'm constrained from doing that given the

23 attorney-client privilege and rule 1.6, and also I'm invoking the Fifth Amendment across

24 the board to avoid waiving my Fifth Amendment privilege.

25 Q Were you aware of any efforts to keep secret or to limit public exposure
 64

1 regarding the fact that people were planning to meet and cast votes for President Trump

2 in these States?

3 A I mean, I'm aware from public reports afterwards about such matters. But

4 as to anything I knew ahead of time, I'd have to take the attorney-client privilege and rule

5 1.6 into consideration as preventing me from answering, and also I believe it's covered by

6 my Fifth Amendment privilege.

7 Q Okay. Let's pull up Exhibit 13. While we're pulling it up, I'll represent to

8 you that this is a December 12, 2020, email that you wrote, again, to Josh Findlay and

9 Mike Roman as well as others, regarding alternate elector coordination.

10 And you wrote, quote, Mike Roman and I were on a conference call with Mayor

11 Giuliani today, and the mayor indicated he'd like to wait until all the electors have voted

12 before putting out any statements or otherwise alerting anyone to focus on making sure

13 the vote gets done and minimize the chance of electors being harassed.

14 What can you tell us about the conference call involving you, Mike Roman, and

15 Mayor Giuliani?

16 A Again, I would invoke the Fifth Amendment privilege and attorney-client and

17 rule 1.6 confidentiality.

18 Q What concerns did you or others have about the prospects of electors

19 potentially being harassed while signing these certificates?

20 A I mean, it's addressed in the document you have, but I can't answer based

21 on my own recollection of anything related to confidentiality of the representation of the

22 client.

23 Q Are you asserting attorney-client privilege on that?

24 A Attorney-client privilege and rule 1.6, but also Fifth Amendment privilege as

25 well.
 65

1 Q Sure. In this message, you wrote that the focus was on making sure that

2 the vote gets done. Did you have any concerns about the possibility that the vote would

3 not happen if it were publicized in advance?

4 A Fifth Amendment, attorney-client, rule 1.6.

5 Q Okay. Did you yourself attend any of the ceremonies in which these

6 individuals cast purported electoral votes for President Trump on December 14th?

7 A Again, Fifth Amendment, and I believe anything like that would be covered

8 by attorney-client privilege and rule 1.6.

9 Q Okay. I mean, I'll note that I think the fact of your attendance is likely not a

10 privileged communication, but still, I note your Fifth Amendment assertion on that issue.

11 A Yeah. I think the main thing I'm sure about is that the entire subject of this

12 alternate electors would be covered by my Fifth Amendment privilege.

13 Q Sure.

14 Next, let's pull up Exhibit 14. While we're pulling it up, I'll represent to you,

15 Mr. Chesebro, that this is a Secret Service email that we've obtained, dated

16 December 16th, 2020, and it pertains to information for guests who were slated to attend

17 a private greeting in the Oval Office that date, December 16th, at 3 p.m. And if you

18 scroll down, you'll see that your name is on this list along with a number of other

19 individuals.

20 So my question is, did you go to the White House on December 16th, 2020?

21 A I think there was a question earlier about whether I ever had a meeting with

22 President Trump and I took the Fifth on that, and also I think the Fifth and I'm not sure if

23 attorney-client privilege is covered by that. Probably not. So I would just invoke the

24 Fifth Amendment on that.

25 Q Okay. What was the purpose of this visit to the White House?
 66

1 A In addition to the Fifth Amendment, I think in terms of the purpose of any

2 meeting that might've occurred with President Trump, that would be covered by

3 attorney-client privilege.

4 Q Are you the Kenneth John Chesebro who's listed in this email message?

5 A I think I would take the Fifth in terms of authenticating a document that is

6 related to the subject matter as to which I'm taking the Fifth. So I -- I mean, I know it

7 sounds pedantic, but I don't think I can answer that.

8 Q Okay. So I'd like to switch gears here and move off the topic of alternate

9 electors to a different but related topic, which is the role that Vice President Pence was

10 slated to play in the Joint Session of Congress on January 6th, 2021.

11 So my first question here, Mr. Chesebro, is, when's the first time that you became

12 aware of a legal theory that Vice President Pence could assert certain authorities as

13 President of the Senate during the Joint Session of Congress?

14 Mr. Kaufmann. When did he first become aware of that?

15 Correct.

16 The Witness. So, Mr. Kaufmann, if there's something I can answer related to my

17 knowledge before I ever began representing the Trump campaign, I can answer?

18 Mr. Kaufmann. I think so, yeah.

19 The Witness. Yeah. So I became aware of the idea that the President of the

20 Senate presiding over the electoral count might have some authority in resolving the

21 count by around 2000. I mean, so I -- there are various law review articles discussing

22 that. So that would be my answer. That is obviously not Vice President Pence, but

23 whoever is the Vice President or the President of the Senate at any particular time. So it

24 would be -- you know, I mean, I was aware of that back in 2000.

25 BY
 67

1 Q Let me ask it a little bit differently then. When did you first become aware

2 of a proposal or a legal theory related to Vice President Pence specifically in the context

3 of the 2020 election that he could play some role during the Joint Session of Congress on

4 January 6th, 2021?

5 A I don't think I can answer that, because whenever I became aware of that, it

6 would've been likely related to work on the campaign. It's -- so I think it's -- it would

7 relate to the specifics of strategy and timing, and so I don't think I could answer that

8 under the attorney-client privilege, rule 1.6, and also I'm maintaining the Fifth

9 Amendment privilege as to the entire subject.

10 Q All right. Did you speak to anyone on the campaign or on the campaign's

11 legal team about this theory regarding Vice President Pence?

12 A Yeah. So I think it's -- across the board it's going to be Fifth Amendment,

13 rule 1.6, and attorney-client privilege on the entire subject.

14 Q Okay. Are you aware of any meetings or discussions that took place in the

15 White House in late November or early December 2020 regarding the Vice President's

16 role in the electoral certification?

17 A I think, again, that's the type of question about, you know, if I start getting

18 into what I was aware of, even if I wasn't, I feel I might be compromising the client's

19 confidences under rule 1.6. So I can't really answer anything about what -- whether I

20 knew something about this at any particular time.

21 Q Okay. Did you ever have any discussions with Vice President Pence or his

22 staff about this theory?

23 A I'm -- it would get into strategy whether I communicated with Vice President

24 Pence or his counsel at any particular point on any particular subject, so I'm not free to

25 answer that given attorney-client privilege, as he was actually one of my clients, and rule
 68

1 1.6.

2 Q Are you asserting that Vice President Pence in his capacity as Vice President

3 rather than as a candidate for Vice President, that that -- that any communications with

4 him in that capacity are protected by attorney-client privilege?

5 A That's a good question.

6 Mr. Kaufmann. I'm not sure -- hold on a second, Ken. I don't know that we can

7 parse that in the abstract. That would require -- I think that our invocation has to be

8 linked to a specific question, and sort of asking that in the abstract would require more

9 thought and legal analysis from Mr. Chesebro's counsel.

10 Okay. If it's helpful, I'll outline for you the thinking that I have

11 behind this question. Specifically, I'm interested in knowing, Mr. Chesebro, whether

12 you've had communications with Vice President Pence or his counsel related to the Vice

13 President's role in the counting of electoral votes during the January 6th Joint Session of

14 Congress. That role would be in Mr. Pence's capacity as the Vice President and as the

15 President of the Senate, a role that he already has that has no pertinent relationship to

16 his role as a candidate for Vice President in the 2020 election.

17 Mr. Kaufmann. Give us a second to go off the record and let us confer, please.

18 The Witness. Yeah.

19 Sure. Let's go off the record.

20 [Discussion off the record.]

 69

2 [3:32 p.m.]

3 So let's go back on the record. It's 3:32 p.m. Eastern, and we're

4 resuming the deposition of Ken Chesebro.

5 BY

6 Q Mr. Chesebro, before we went off the record, I had asked you whether you

7 had any discussions with Vice President Mike Pence related to any legal theories about

8 his authorities during the joint session of Congress on January 6th.

9 Did you have any such discussions?

10 Mr. Kaufmann. 1111, just one point: Was it with Mr. Pence or with Mr. Pence

11 or his counsel?

12 BY

13 Q Mr. Pence or his counsel.

14 A Yes. And I would invoke the Fifth Amendment privilege on that entire

15 subject matter.

16 Q Okay. We understand that you had two calls with Mike Pence's counsel,

17 Greg Jacob, on December 9, 2020, one for 2 minutes, and then the other for 17 minutes.

18 During either of those calls, did you discuss the role that the Vice President could

19 play at the joint session of Congress?

20 A Again, I would -- I would invoke the Fifth Amendment privilege on that.

21 Q Okay. Let's pull up exhibit 15, please. And while we're pulling it up, I'll

22 represent to you that this is an email exchange, Mr. Chesebro, that you had with John

23 Eastman forwarding an email that you prepared on December 13, 2020.

24 So, as you can see here, this is a message that you passed along to John Eastman

25 on January 2nd, forwarding a December 13th email. You wrote: "I did a very rough
 70

1 email on December 13, which Boris requested on behalf of the mayor."

2 My question to you is, is it the case that you were asked to prepare a

3 memorandum regarding the Vice President's role in the joint session by someone on the

4 Trump campaign?

5 A On that, I would invoke the Fifth Amendment privilege, and then also

6 attorney-client privilege and 1.6 confidentiality.

7 Q Okay. When were you asked to prepare legal research related to this

8 issue?

9 A Beyond anything in any document we may have that addresses that, I can't

10 answer, given the Fifth Amendment privilege and attorney-client privilege and 1.6.

11 Q Okay. Did that request take place before your December 9th calls with

12 Greg Jacob?

13 A Same answer.

14 Q Okay. And just to clarify, you're asserting your Fifth Amendment rights

15 here?

16 A Yes.

17 Q Are you also asserting attorney-client privilege?

18 A Indeed.

19 Q Okay. In this email to Dr. Eastman -- I think you might need to scroll.

20 Actually, I'm not seeing it.

21 In one email communication to Dr. Eastman, you indicated that you were planning

22 on writing a memo related to the Vice President's authorities, but ultimately ended up

23 writing the cert petition for the Wisconsin litigation instead. And instead, you ended up

24 writing a rough email to Mayor Giuliani.

25 What can you tell me about the circumstances of the original request for you to
 71

1 write this memo?

2 A Even if I recall them now, I can't answer because of attorney-client privilege

3 and Rule 1.6, but also, I'm invoking the Fifth Amendment.

4 Q So let's move to the top of this email on December 13th that you sent to

5 Mayor Giuliani. I guess my first question is, are you the Kenneth Chesebro listed here

6 who prepared this message and transmitted it to Rudy Giuliani?

7 A I don't think, consistent with my obligations under the attorney-client

8 privilege, that I could acknowledge anything attributed to me as to whether or not it's

9 genuine, unless and until it's clear that any privilege was removed.

10 Q Okay. At the top of this, you write: "As mentioned in my text, I lost the

11 several-page memo that I had nearly finished." And at the bottom of the email, which

12 we don't have to scroll through, you thanked Mayor Giuliani for seeking your further

13 input on this possible strategy.

14 My question is, what communications did you have with Rudy Giuliani about the

15 implementation of a strategy related to the Vice President?

16 A Even if I could recall discussions with Mayor Giuliani, I wouldn't be free to

17 disclose them, given the attorney-client privilege and Rule 1.6. And moreover, I'm

18 asserting the Fifth Amendment privilege as to the entire subject.

19 Q In the third paragraph of this email, you wrote: "I have not delved into the

20 historical record." But then you add: "Vice President Pence's counsel has and seems

21 totally up on this, and I'm sure there are many other lawyers who can add a great deal."

22 Is this a reference to your December 9th phone calls with Vice President Pence's

23 counsel, Greg Jacob?

24 A You might infer that from the document, but I can't acknowledge anything,

25 given my obligations under the attorney-client privilege, Rule 1.6, and also I'm taking the
 72

1 Fifth Amendment.

2 Q Let's scroll down. This is a long message, but I'd like to move to the

3 paragraph beginning "he then opens," which is in page 2. There you go.

4 So in this part of the message, you propose that the president of the Senate

5 would, quote, "open the two envelopes from Arizona, and announces that he cannot and

6 will not, at least as of that date, count any electoral votes from Arizona because there are

7 two slates of votes, and it is clear that the Arizona courts did not give a full and fair

8 opportunity for review of election irregularities, in violation of due process."

9 Was it factually true that there would be two slates of votes from the contested

10 States, even if a court or legislature had not determined that President Trump had won a

11 given State?

12 A I can't get into the substance of any legal analysis related to January 6th or

13 to this memo. So, I mean, you know, as an abstract matter, maybe in another forum, I

14 would address something like that. But now I'm -- for now, I'm taking the Fifth

15 Amendment privilege. And also, I'm constrained by attorney-client and Rule 1.6

16 confidentiality.

17 Q Okay. This passage also contemplates that a court would not have

18 determined that President Trump had won in Arizona by the January 6th joint session.

19 What then would be the rationale for the President of the Senate taking the position that

20 the legitimate electoral college votes could not be opened and counted?

21 A I really can't address the subject matter, given my Fifth Amendment privilege

22 assertion. If it is -- if I started getting into details related to the substance of the memo,

23 even independent from campaign strategy, then that might waive my Fifth Amendment

24 privilege. So I have to be cautious on the scope.

25 Q On page 3, you continue and you write -- you propose that the President of
 73

1 the Senate would say that if Arizona wants to be represented in the electoral count,

2 either it has to rerun the election or engage in adequate judicial review, or have its

3 legislature appoint electors.

4 In your view, what is the source of the constitutional authority for the President of

5 the Senate to make that determination?

6 A Again, I can't get into the substance of anything I did or advocated during the

7 campaign. I'm asserting the Fifth Amendment privilege. Probably there's a lot of stuff

8 in -- in this document or in things cited in it which would answer that question, but I'm

9 unable to address that.

10 Q Okay. Another topic that is covered in this memo suggests that the Vice

11 President could recuse himself from the joint session as an interested party in the

12 counting of the electoral votes.

13 Did you have any conversations with Rudy Giuliani, Boris Epshteyn, or anyone else

14 on the legal team about the possibility of Vice President Pence recusing himself during

15 the joint session?

16 A Fifth Amendment and attorney-client privilege and Rule 1.6 on that.

17 Q To your knowledge, was then-Senate President Pro Tern Chuck Grassley or

18 anyone on his team ever approached about that possibility?

19 A There have been public reports that he never contemplated it, but I can't,

20 you know, address anything I might know that's not public, given attorney-client privilege,

21 Rule 1.6, and also the Fifth Amendment.

22 Q Variously throughout this memo you reference the possibility that Federal

23 Courts, including the Supreme Court, might decline to take any action on the actions that

24 you propose, based on the political question doctrine, and that even if it did reverse, it

25 would only come after a number of additional days of delay.

 74

1 Did you ever discuss the possibility that Federal Courts would decline to hear

2 litigation related to this issue on the basis of the political question doctrine?

3 A I think this was widely discussed at the time publicly, in part, because

4 Professor Tribe had advocated that view in a 2009 Harvard Law Review article very

5 strongly. But I -- but as to anything that would be internal to the campaign, I wouldn't

6 be at liberty to disclose that, given attorney-client confidentiality and Rule 1.6, and then

7 also I'm maintaining the Fifth Amendment privilege on the entire topic.

8 Q We understand that during this period of time, John Eastman advocated

9 against litigation related to the Vice President's authority, including cases like Gohmert v.

10 Pence, specifically, because it might prompt an unfavorable ruling on the legal question.

11 Did you have any conversations with anyone on the legal team about those types

12 of concerns?

13 A Even if I recollected some discussion on that, I wouldn't be free to disclose it,

14 given attorney-client privilege and Rule 1.6, but also maintaining Fifth Amendment

15 privilege as to the entire subject.

16 Q Okay. So in the message that you proposed to Mayor Giuliani on

17 December 13th, you are proposing a scenario where the Vice President is taking action, in

18 part, by making a determination that preexisting court litigation is invalid, and you are

19 also arguing in this message that any such action might potentially be unreviewable on

20 political question grounds.

21 You spoke with a reporter in June of this year on this question, and you told that

22 reporter, quote: "If there is a nonfrivolous argument concerning the meaning of the

23 Electoral Count Act or its constitutionality, it's legitimate to press that and let the courts

24 decide. We have a system where the courts ultimately resolve these issues and people

25 can live with how the courts resolve them."

 75

1 How do you square that with the proposal that you're making here, which

2 specifically contemplates actions that disregards previous court rulings and potentially

3 forecloses future court rulings?

4 A Well, actually, the beginning of your question, I think, inaccurately described

5 the December 13th email you reference as urging that the Vice President intervene in the

6 counting.

7 I believe the December 13th memo specifically advocates the Vice President leave

8 the building, have nothing to do with the count, and only rely on the President of the

9 Senate to preside over the count, because then he wouldn't have a conflict of interest

10 except for a partisan interest. That's my reading -- my recollection from the email.

11 So -- so I just wanted to clarify that part of your question, I think, was inaccurate in

12 thinking it suggested some action be urged on Vice President Pence.

13 But as to the quote from the article by the reporter, I think there's -- I think that

14 was referring to litigation in the States over who had won particular States. That's a

15 different issue than how you would resolve an issue in Congress as to the role of -- of the

16 President of the Senate in the count.

17 But -- so that -- so I think I was addressing -- I mean, I understand your quote was

18 accurate, but I think it was addressing litigation in the States, not litigation over the core

19 question of who counts the votes.

20 But as to -- you know, as to the overall subject matter, I'm still maintaining the

21 Fifth Amendment privilege in terms of anything related to my actions during the

22 2000 -- 2000 -- 2020 and 2021.

23 Q Did the Trump campaign ever press litigation calling into question the

24 meaning of the Electoral Count Act or its constitutionality in litigation in the 2020

25 election?
 76

1 A I don't -- I don't -- I don't personally recall whether there was litigation over

2 that. So I can't really answer that.

3 Q So, to the extent that there's a question about the constitutionality of the

4 Electoral Count Act, in your view, would that have likely related to the process for

5 counting electoral votes during the joint session of Congress?

6 A No. I think everybody knew that whether or not the Electoral Count Act

7 was constitutional was -- was a key factor in what would happen throughout the election.

8 But that was true also in 2000. That was an intense object of inquiry. So that's

9 obviously central to how post litigation -- postelection litigation is handled and what

10 happens in Congress. So this is no -- it's not novel that this would be central to any

11 campaign.

12 Q So let me re-read this quote to you. You're writing, or you're saying to this

13 reporter: "If there is a nonfrivolous argument concerning the meaning of the Electoral

14 Count Act or its constitutionality, it's legitimate to press that and let the courts decide."

15 A Oh, I see. Oh, okay. I didn't listen to that. So that -- I'm sure I said that

16 to the reporter. And so, yes, there -- that, ideally, litigation over the constitutionality of

17 any act of Congress can be resolved by the courts. That's one's hope.

18 Q I mean , I think what I'm struggling with here is that in the proposal that

19 you sent to Mayor Giuliani on December 13th, you are both proposing a scenario where

20 the President of the Senate makes a determination that a court's review of election

21 challenges has been insufficient and taking an action that you would also argue is

22 unreviewable by a further later Federal Court on political question grounds.

23 So I guess what I'm trying to square here is how this December 13th email sort of

24 squares with, you know, the principle that courts should decide legitimate legal questions

25 regarding the meaning of the Electoral Count Act.

 77

1 A So, again, I think I can't get into the details, given the Fifth Amendment

2 privilege. But I think everyone recognizes that if you can have a court -- in general, if

3 you can have a court authoritatively resolve the constitutionality of a statute, that's ideal.

4 But if a court won't do it, then that creates -- that affects the strategy that

5 anybody would -- would use in trying to decide, you know, what to do in a particular

6 litigation posture.

7 So I don't think-- so -- but I don't think I can address the substance of the

8 argument without risking getting into the substance and -- and waiving my Fifth

9 Amendment privilege.

10 So I understand that you're pointing to an inconsistency between something I said

11 to the reporter and something that's attributed to me in a memo, at least you can argue

12 there's an inconsistency, but I don't feel I can -- you know, I can get into the specifics.

13 Q Is that, what you just described, part of the rationale that you discussed with

14 members of the Trump campaign in the lead-up to the January 6th joint session 2021?

15 A I wouldn't be able to get into any specific discussions even if I recalled that

16 level of detail, given attorney-client privilege and Rule 1.6. But, as I started addressing it

17 when you first asked me about this, it was widely discussed that -- that a number of legal

18 scholars, including Professor Tribe, thought that the Supreme Court should not get

19 involved in litigating these issues. It's inherently a political question.

20 So I think there were people on the Trump side that were publicly saying, Okay,

21 well, we'll take that view and that happens to help us in this situation, just as it would

22 have helped Gore in 2000. So this is just, you know, whichever side has benefited from

23 the political question doctrine, they'll -- they'll invoke it. That's just the way it is.

24 Q President Trump's campaign had the opportunity to raise these issues before

25 the courts, and yet, they did not in 2020. Do you know why they didn't?
 78

1 A I don't have any ability to address that level of strategy even if I had

2 familiarity with the internal deliberations, given the attorney-client privilege and Rule 1.6.

3 Q Okay. I think we can move on.

4 So, Mr. Chesebro, we understood -- understand that on December 23, 2020, you

5 received a 42-minute phone call from John Eastman at 9:09 a.m. Eastern. That's the day

6 that we understand that he was asked to prepare the first of two memos that he

7 ultimately wrote about Vice President Pence.

8 What can you tell us about the conversation that you had with Dr. Eastman that

9 morning?

10 A Obviously, I'm not free to discuss the specifics of anything I discussed with

11 him as much as I would love to, but there were other things happening in -- in the case at

12 the time, that if you look at the public record and documents you'll see that there was a

13 lot happening that had nothing to do with -- with memos attributed to him. So -- but I

14 can't get into the specifics of what I discussed with him, unfortunately. And also --

15 Q Do you -- sorry, go ahead. I cut you off there. I just want to make sure

16 that the record reflects the end of your answer.

17 A Yeah. No, I'm just saying that any -- any implication that our discussion had

18 anything to do with his memos related to January 6th is open to question, given that

19 there was other -- other -- other things that were happening of a litigation nature at the

20 time, but I can't get into the specifics, unfortunately.

21 So I just wanted to push back on any suggestion that you would -- that you would

22 infer that that lengthy telephone discussion had anything to do with his -- his memos that

23 are under scrutiny.

24 Q Okay. Well, we're also aware of numerous email and phone exchanges

25 that you and Dr. Eastman had that day, and we can show some of them to you now.
 79

1 So let's pull up exhibit 16 to start.

2 This is an email that you wrote to Dr. Eastman on December 23rd at 11:06 a.m.

3 Eastern, with subject matter Tribe's argument that the Supreme Court should stay out of

4 election disputes, based on political question doctrine. And you send him a cite for a

5 legal article that Mr. Tribe wrote and then you wrote "probably include cite in memo."

6 Why did you send this?

7 A Even if I recalled specifically what I discussed with him, that would be, I

8 think, attorney-client privileged information, Rule 1.6. And also, I'm invoking the Fifth

9 Amendment on the whole subject.

10 Q You write here: "Include cite in memo." At this -- is it fair to say that at

11 this point in time, you knew that Dr. Eastman was preparing a memo about the Vice

12 President's role in the joint session of Congress?

13 A Even if I could recollect now exactly what they related to, I mean, I wouldn't

14 be free to discuss internal strategy.

15 Q Okay. Let's pull up exhibit 17.

16 So 4 minutes after the email that I just showed you, Dr. Eastman sent you an email

17 at 11:10 a.m. He attaches a memo titled "January 6th scenario" with the subject line

18 "first draft."

19 Did you know that this memo was forthcoming from Dr. Eastman, and had you

20 agreed to help review and provide feedback on it?

21 A Even if I recollected the specifics, I wouldn't be free to disclose them, given

22 Rule 1.6 and attorney-client privilege. And, of course, I'm maintaining the Fifth

23 Amendment privilege.

24 Q Did you, in fact, provide any feedback to Dr. Eastman about his draft memo?

25 A Same answer: Fifth Amendment, Rule 1.6, attorney-client privilege.

 80

1 BY
2 Q Okay. Can I just be clear for the record. SO you're asserting

3 attorney-client privilege and Rule 1.6 here.

4 Are you saying that your communications with John Eastman around this time in

5 late December about his memo and that we're discussing here is within the scope of the

6 legal services for which you were retained by the campaign?

7 A So what I'm saying is that --

8 Mr. Kaufmann. Ken --

9 The Witness. The campaign has specifically instructed me to maintain any

10 possible privilege. And without getting into the specifics, I think I have to maintain

11 privilege as to anything that the campaign might have asked me to do. And, you know, I

12 just can't --1 can't -- it's not a unilateral decision as to what is within that scope of

13 representation.

14 So I do know that Professor Eastman was -- was in some capacity an attorney for

15 the Trump campaign. So this is an attorney-to-attorney communication relevant to the

16 subject of the representation. So I just feel like I have to assert the privilege, I mean,

17 absent further clarification.

18 Okay. And thank you for clarifying that on the record.

19 BY
20 Q So we'll pull up exhibit 20 for you, Mr. Chesebro. This is your response to

21 Dr. Eastman's email with the subject line, "draft two with edits" and contains an

22 attachment titled, "privileged and confidential-December 23 memo on Jan 6 scenario."

23 We can show you the attachment to that, but I'll represent to you that it's a

24 standard Word document. We'll actually pull up exhibit 22 for you, which is a redline

25 that we've prepared between the draft that you received from Dr. Eastman and the draft
 81

1 that you sent back. So the red underlined portions you can see here we believe

2 represent the revisions that you made to the memo.

3 So I guess my first question is, do you recall making revisions like this to the

4 document that you received from John Eastman?

5 A I mean, even if I recall it, I wouldn't acknowledge anything related to the

6 strategy of the campaign under attorney-client privilege and Rule 1.6, and also, I'm

7 maintaining the Fifth Amendment privilege.

8 Q Okay. Into the first paragraph of this memo, you inserted the sentence:

9 "There is very solid legal authority, and historical precedent, for the view that the

10 President of the Senate does the counting, including the resolution of disputed electoral

11 votes (as Adams and Jefferson did while Vice President, regarding their own election as

12 President) and all the Members of Congress can do is watch."

13 What was the basis for adding that to Dr. Eastman's memo?

14 A That would involve my mental impressions about handling the

15 representation. So I'm not free to disclose it under attorney-client privilege and Rule

16 1.6, but also, I'm maintaining the Fifth Amendment privilege.

17 Q Okay. The first sentence of this memo, which Dr. Eastman wrote and which

18 you did not edit, reads that "Seven States have transmitted dual slates of electors to the

19 President of the Senate."

20 At the time that this memo was written on December 23rd, was it factually true

21 that seven States had, in fact, transmitted dual slates of electors?

22 A I don't know what exactly that sentence means or -- you're asking me now.

23 I can't answer that. I mean --

24 Q On what basis?

25 A I know there were alternate electors' votes sent in. I don't know if that
 82

1 means that they're dual slates. I don't know what he was referencing, so it's hard for

2 me to answer that.

3 Q Okay. Did you ever have any conversations with John Eastman about

4 whether the electoral slates that had been transmitted were, in fact, dual slates of

5 electors that had been received by the President of the Senate?

6 A I know there was -- there's at least one or two conversations I've had with

7 him at some point, but I don't recall the subject. And so I -- you know, and, again, even

8 if I did recall --

9 Mr. Kaufmann. Ken. Excuse me, Ken.

10 The Witness. -- I don't think I can answer due to the attorney-client privilege and

11 Rule 1.6. And, of course, I'm asserting the Fifth Amendment on the entire subject.

12 BY
13 Q When did those conversations with John Eastman take place, to the best of

14 your recollection?

15 A So that's not privileged. Sometime in December is the best I can recall, but

16 I'm not sure there's more than one or two and I don't know when.

17 Q Do you know if it was before or after he prepared this memo?

18 A I just have no recollection. There's presumably phone records that would

19 reveal that, but I don't know of any -- I can't say that I had any phone discussion with him

20 around this time, but it could just be I don't recall.

21 Okay. Mr. Kaufmann, I saw you weigh in. I don't know if you

22 want to say something on the record or otherwise.

23 Mr. Kaufmann. Oh, I just -- I just wanted to -- yeah. I mean, I think, going back

24 to-earlier question, communications between Eastman, who, as we understand,

25 was a campaign lawyer, and Ken, who was a campaign lawyer, relating to legal strategy,
 83

1 legal analysis and so forth, we would submit, are subject to the attorney-client privilege.

2 Could we take five?

3 Absolutely.

4 Mr. Kaufmann. Thank you.

5 [Recess.]

6 All right. We are back on the record.

7 BY
8 Q Mr. Chesebro, I just wanted to ask you one more question about the memo

9 that we've been discussing with you.

10 In the email that you sent to John Eastman attaching this document, you wrote,

11 quote, "really awesome." What did you mean by that?

12 A That then -- that's a term that's subject to interpretation, but I don't think I

13 can answer that, given the Fifth Amendment privilege that I'm asserting.

14 Q Okay. Did you speak to anyone other than Dr. Eastman about the revisions

15 that you made to his draft memo?

16 A Even if I could recall or go back and address that, I think that's covered by

17 attorney-client privilege and Rule 1.6. And, of course, I'm asserting the Fifth

18 Amendment.

19 Q Okay. Let's pull up exhibit 23.

20 While we do that, I'll represent to you that this is a December 23, 2020, email sent

21 at 11:40 a.m. Eastern. This email is one that Dr. Eastman sent to Boris Epshteyn,

22 copying you. It forwards your email with the subject line "draft 2, with edits" and

23 contains the attachment with the same title as the document that you sent to

24 Dr. Eastman earlier.

25 Do you know why Dr. Eastman sent this to Boris Epshteyn?

 84

1 A If I -- if I knew why, I don't think I could disclose it. That would be covered

2 by the attorney-client privilege and Rule 1.6.

3 Q Is this a document that Boris Epshteyn or anyone else on the Trump

4 campaign asked Dr. Eastman to prepare?

5 A I mean, I don't think I can get into whether I knew what was requested of

6 particular attorneys or not. So I think I have to decline to answer that, based on

7 attorney-client privilege and Rule 1.6.

8 Q Are you also asserting your Fifth Amendment privileges here?

9 A Yes. May I just -- yeah, to the entire subject matter, I guess, yeah.

10 Q We're just trying to get that on the record on a question-by-question basis.

11 A Okay.

12 Q So we understand that on the same day that you and Dr. Eastman

13 corresponded about this issue and the same day that Dr. Eastman sent this memo to

14 Boris Epshteyn, Dr. Eastman participated in a phone call with the White House at 1:37

15 p.m. after requesting to update President Trump on his, quote, "strategic thinking." Did

16 you participate in that call?

17 A I don't think I can get --1 can -- I can --1 think I can answer whether I

18 communicated with particular people, but I don't think I can answer whether I was in a

19 particular meeting or call on a particular subject, because I think that --

20 Mr. Kaufmann. Let me -- can we go -- Ken, let's talk real quick.

21 The Witness. Okay, yeah. Start with that.

22 [Discussion off the record.]

23 Let's go back on.

24 BY

25 Q So, Mr. Chesebro, I'm going to ask the question hopefully in a slightly more
 85

1 refined way. So we understood that John Eastman spoke with the White House by

2 telephone at 1:37 p.m. on December 23, 2020, and that the call lasted for 22 minutes and

3 52 seconds.

4 Did you participate in that phone call?

5 A Mr. Kaufmann assured me that I could answer if the answer is no. And I

6 have no recollection of ever knowing that there was any such call until you just asked me

7 about it.

8 Q Okay. Did you ever find out what happened on this call, or alternately, ever

9 hear of any discussions between John Eastman and President Trump on the topic of his

10 memo?

11 A I had no knowledge of that until eventually what, months later, information

12 leaked out publicly. I had no knowledge of any of that.

13 Q Okay. Ultimately, we know that Dr. Eastman prepared another related

14 memo on this issue on or around January 3rd. Do you know why he prepared a second

15 memo about the Vice President's role during the joint session of Congress?

16 A I have no recollection of knowing that. I mean, it's possible I knew

17 something about it at the time, but I don't have any recollection of ever knowing that.

18 Q Do you recall knowing whether the memo that we just discussed, the

19 December 23rd memo, or any other John Eastman memo, was sent to anyone in the

20 White House during this period?

21 A Yeah. I just have no -- I have no recollection of ever knowing at the time

22 exactly what John Eastman was or wasn't doing regarding the White House. I mean,

23 obviously, I have read a lot of stuff since then.

24 Q Other than what's been publicly reported, do you have any knowledge of

25 any conversations involving President Trump and Vice President Pence about the Vice
 86

1 President's role on January 6th?

2 A No.

3 Q Did you ever learn or do you have any knowledge about any conversations

4 involving President Trump and Rudy Giuliani regarding Vice President Pence's role on

5 January 6th?

6 A No. I mean, just -- I mean, I've read a lot about it since then, but not -- not

7 any knowledge derived from my work on the campaign.

8 Q Okay. It's been publicly reported and we understand through our

9 investigation that President Trump, Vice President Pence, and John Eastman met on

10 January 4, 2021, in the White House and spoke about the Vice President's role in the joint

11 session of Congress.

12 Do you have any knowledge of that outside of public reporting?

13 A No.

14 Q Okay. Do you have any knowledge about a meeting between Greg Jacob

15 and John Eastman that took place on January 5th about the Vice President's role in the

16 electoral certification?

17 A Other than the publicly reported accounts in the last year, no.

18 Q Okay. Did you ever explore similar theories other than Dr. Eastman's

19 theory for options to disrupt or delay the joint session of Congress on January 6th?

20 A If I had any further input on the subject of what would or wouldn't happen

21 on January 6th, that would be covered by the attorney-client privilege or Rule 1.6, and I

22 would take the Fifth Amendment privilege on that.

23 But I would -- I would also object to the disrupt or that I would ever do anything as

24 a lawyer to disrupt or delay, do anything improper related to a proceeding in Congress.

25 Q Okay. Let's pull up exhibit 28.

 87

1 While we're pulling it up, I'll represent to you, Mr. Chesebro, that this is a January

2 5, 2021, email that you wrote to John Eastman.

3 You sent him a few Law Review articles, and then a little lower down in the email

4 you write: "What these two articles suggest is that to disrupt the Electoral Count Act

5 and its timetable, which is our enemy, we don't need Pence to invoke the sole power to

6 open the envelopes and/or count the votes. We only need to have Pence say that as

7 best he can tell, it's unconstitutional for the Houses to separate and vote separately. If

8 Congress counts the votes, it has to do so in joint session."

9 What did you mean when you wrote that the Electoral Count Act was, quote, "our

10 enemy"?

11 A I have no -- I mean, I have no recollection of writing this, but I mean,

12 presumably it was filed in some files and presumably I did, but -- so I don't -- not

13 recollecting writing it at, all and given the fact that I'm asserting the Fifth Amendment,

14 and this would also relate to attorney-client privilege and Rule 1.6 materials, I don't think

15 I can answer.

16 Q Is it fair to say that, as you wrote in this email, the purpose was to disrupt

17 the Electoral Count Act and its timetable, which involved the joint session of Congress on

18 January 6th?

19 A You can read it as well as I can. I mean, it's analyzing legal theories in a Law

20 Review article and relating them to options available to the campaign, I mean. So, I

21 don't -- there's nothing I can add, consistent with the privileges that I'm invoking.

22 Q Well, I guess tell me what you meant when you used the word "disrupt"

23 then?

24 A Again, I can't, consistent with the Fifth Amendment privilege I'm asserting,

25 start addressing particular documents you show me that I may or may not even recall
 88

1 having written without risking waiving the privilege. So I just have to adopt it across the

2 board.

3 There's many things I haven't been able to testify about that would be very

4 favorable to me, because I'm hemmed in by the attorney-client privilege. And so this is

5 one of them as well.

6 Mr. Kaufmann. And for the record, we're just -- we're -- Ken has invoked his Fifth

7 Amendment privilege. And then also, our view is this is a privileged email. Questions

8 about it are subject to attorney-client privilege and Rule 1.6.

9 Understood. Thank you, Adam.

10 BY
11 Q So let's pull up exhibit 29.

12 This, Mr. Chesebro, is a fairly long December 24, 2020, communication involving

13 yourself, Dr. Eastman, Judge Troupis, a number of other individuals affiliated with the

14 Trump campaign, like Justin Clark, Matt Morgan and others. And I'll represent to you

15 that the general topic of discussion on this email chain is about appealing a Pennsylvania

16 State Court decision to the Supreme Court.

17 I'm going to take you down somewhat in this chain to a December 24th email that

18 you wrote at 7:41 a.m. In our document, it's sort of at the bottom of page 3, moving

19 into page 4.

20 So if you scroll down a little bit further, there's a sort of balded header that reads

21 "possible political value." And there you write, quote: "The relevant analysis, I would

22 argue, especially if the resource constraint is removed is political."

23 And you write: "Just getting this on file means that on Jan 6, the Court will either

24 have ruled on the merits or, vastly more likely, will have appeared to dodge again

25 (declining to rule; the point is that the Court can and should rule after Jan 20. If it
 89

1 doesn't expedite, hopefully will prevent a loss before Jan 6.)

2 You write that: "This will feed the impression that the courts lack the courage to

3 fairly and timely consider these complaints, and justifying a political argument on January

4 6 that none of the electoral votes from the States with regard to which the judicial

5 process has failed should be counted."

6 What did you mean when you wrote that?

7 A Again, I don't think I can get into it, consistent with my invoking the Fifth

8 Amendment privilege. And it's also the same core attorney-client privileged material, as

9 far as on its face it's outlining options for the campaign's effort to take every opportunity

10 to try to prevail in the contest. So I just don't think it's something I can address.

11 Q Slightly above this, you evaluate the odds of legal relief here, and you say,

12 quote: "As far as the odds that the Court would grant effective relief before January

13 6th, I'd say only 1 percent." And above that, you write that the likelihood of a court ever

14 finding in your favor, at any point in time, is no more than 5 percent.

15 I guess my question is, why did you have confidence in the January 6th strategy

16 that you had outlined if you thought that there was such a low likelihood that a court

17 would ever grant effective relief on these legal arguments?

18 A That clearly goes to matters of legal strategy that are protected by the

19 attorney-client privilege and Rule 1.6. And also, I'm invoking the Fifth Amendment on

20 that.

21 Q Let's scroll down a little bit. You write at the -- in the bottom paragraph

22 here, quote: "I think having, as many States still under review (both judicially and in

23 State legislatures) as possible is ideal, even if the only political payoff ends up being

24 simply either a bolstering of the argument that there should at least be extended debate

25 in Congress about the election regularities in each State or, alternately, the public should
 90

1 come away from this believing that the election in Wisconsin was likely rigged and stolen

2 by Biden and Harris, who were not legitimately elected."

3 What did you mean when your wrote that passage?

4 A Even if I recall specifically the context, I don't think I could get into it, given

5 the Rule 1.6 confidentiality, attorney-client privilege, and I'm also invoking the Fifth

6 Amendment.

7 Q Why did you think it was important that the public believe that Joe Biden

8 wasn't legitimately elected President?

9 A Again, same answer, Fifth Amendment and attorney-client privilege.

10 Q Okay. Later in this chain, at 9:54 p.m. on December 24th, you wrote

11 another email. For our purposes, this is at the bottom of page 2. You just passed it.

12 A little further down, please. Yes, there you go.

13 So in the paragraphs right here that you write, Mr. Chesebro, you wrote, quote:

14 "I think the odds of action before Jan 6 will become more favorable if the Justices start to

15 fear that there will be, quote, 'wild' chaos on January 6 unless they rule by then either

16 way. Though that factor could go against us on the merits. Easiest way to quell chaos

17 would be to rule against us -- our side would accept that result as legitimate."

18 What did you mean when you referred to the potential for wild chaos on January

19 6th?

20 A Even if I recalled the specific context, I don't think I can disclose it, because it

21 relates to the strategy of the campaign. So it's protected by privilege, attorney-client

22 privilege and Rule 1.6. And also, I'm asserting the Fifth Amendment privilege.

23 Q Was your use of the word "wild" here in any way related to President

24 Trump's December 19th tweet that called his supporters to Washington, D.C. and used

25 the language, quote, "be there, will be wild"?

 91

1 A The same answer. Even if I could recollect having written this and

2 specifically what I meant, I wouldn't be free to disclose it, given attorney-client privilege

3 and Rule 1.6, and the Fifth Amendment privilege I'm asserting.

4 Q Thank you. We can take the exhibit down.

5 I only have a few more questions for you, Mr. Chesebro. The first is, did you ever

6 visit the Willard Hotel in Washington, D.C., during the post-election period?

7 A Oh, no. I mean, I was once there years before, but yeah, not during that

8 period.

9 Q Okay. Did you ever speak with John Eastman or anyone on the Giuliani

10 legal team about the work that they were doing at the Willard Hotel?

11 A No.

12 Q Did you have any role in planning or preparing for any of the rallies that took

13 place in Washington, D.C. on January 6, 2021?

14 A No.

15 Q In the days leading up to January 6th, were you aware of any discussions

16 about encouraging people to go to the Capitol on January 6th?

17 A Discussions? I mean, apart from -- I mean, I knew there was some sort

18 of -- something planned. You mean discussions internal?

19 Q Internal discussions outside of what you would have seen publicly reported?

20 A No, none.

21 Q Are you aware of anything that President Trump said -- and, again, this is

22 other than what he said publicly -- about what might happen with the certification during

23 the joint session of Congress on January 6th?

24 Mr. Kaufmann. I'm sorry, Josh, was there a timeframe for that? Anything

25 President Trump said in any specific period of time or ever?

 92

1 Well, we can ask it two ways.

2 BY
3 Q So let's start by asking between November 3, 2020, and January 6, 2021, are

4 you aware of anything that President Trump said, not in public, about what might happen

5 with the joint session of Congress on January 6th?

6 A So -- yeah, I guess I should talk to Adam about that. Talk about --

7 Mr. Kaufmann. So let me just say that it's probably -- we'll talk. Let us talk.

8 Let's go off the record.

9 [Discussion off the record.]

10 Let's go back on.

11

12 Q Mr. Chesebro. Do you need me to repeat my question?

13 A No. It was whether I -- well, maybe you should, just for clarity.

14 BY
15 Q Sure. For clarity for the record, my question was: Between November 3,

16 2020, and January 6, 2021, are you aware of any statements that President Trump made

17 in that time period, not in public, about what might happen during the joint session of

18 Congress on January 6, 2021?

19 A So Mr. Kaufmann clarified the things that didn't happen I can testify to.

20 And so I can testify that I never heard anything said directly with Mr. Trump or by anyone

21 relating hearsay regarding anything that he thought would happen on January 6th. That

22 is, I might have read news reports at the time that anyone could have read, but nothing

23 related to my work as a lawyer that related to anything that he had said about January

24 6th.

25 Q Okay. The same question, but any statements by President Trump related
 93

1 to changing the outcome of the election result?

2 Mr. Kaufmann. Objection. I think --

3 The Witness. I mean, that goes to litigation strategy, trying to win in the States.

4 And if I can recall specific things to attribute to him, I don't think I could --1 mean, that's

5 just -- that's attorney-client communication. That's really core to, you know, the work

6 on the case. So I don't think I could answer that, consistent with attorney-client

7 privilege and Rule 1.6.

8 BY

9 Q Okay. So I'm just going to sort of postdate the original question here

10 related to statements made after January 6th. So since January 6, 2021, are you aware

11 of any statements that President Trump has made, not in public, about January 6th or the

12 joint session of Congress?

13 A No, nothing, again. There's no way I would know of anything like that.

14 Q Okay. Were you in Washington, D.C. during the last week of December,

15 the first week of January, leading up to the joint session?

16 A I think just on that subject in terms of presence in Washington, D.C., I think

17 I'll just take the Fifth Amendment to the whole subject matter. I mean, unless I'm

18 required to, I just think that's sort of the subject matter of -- related to January 6th, I think

19 I want to --

20 Mr. Kaufmann. I'm advising you to invoke your Fifth Amendment privilege on

21 that.

22 The Witness. Yeah, yeah. Just it seems -- yeah.

23 Mr. Kaufmann. Just once you've invoked, that's fine.

24 The Witness. Yeah. I mean, I've already answered the questions about contact

25 with various people. Yeah. Okay, thank you.

 94

1 Okay. Before I ask a final few questions, I just want to check

2 back in with the participants online and see whether any members who are still present

3 or any other staff have any questions that they'd like to follow up with?

4 BY

5 Q I have a follow-up clarification question for you. You've mentioned now a

6 couple times that a communication or an email might be relevant to your work on the

7 case. What do you mean by "the case"?

8 A Oh, the representation involving the campaign's effort to -- you know, to

9 explore every option for prevailing in the contest. So I know that's not, you

10 know -- when I say -- when I refer generally, I talk about the representation, which, of

11 course, started in Wisconsin, but then it expanded in some ways, that, you know, maybe

12 it's not completely clear at any particular point what the scope of the representation is,

13 but I'm taking the broadest view, because the campaign has said I must maintain the

14 privilege. And then if there's any gray areas as to what my role actually was, that can be

15 determined by a court or by stipulation. So I just mean the representation itself as it

16 evolved.

17 Thank you.

18 BY

19 Q One follow-up question: Mr. Chesebro, I believe you had testified earlier

20 that your attorney-client relationship with the Trump campaign began after the 2020

21 Presidential election. Is that right?

22 A Yes.

23 Q Okay. And I think you answered a question earlier today about whether

24 before you entered into an attorney-client relationship with the Trump campaign

25 whether you were aware of the concept of -- or the role of the Vice President at the joint
 95

1 session. Is that right?

2 A Yes. Sure.

3 Q Okay. I wanted to ask you the same question about a topic that came up

4 earlier today, and that is the potential appointment of electors by a State legislature.

5 Were you aware of that concept before you entered into a privileged relationship with

6 the Trump campaign?

7 A I believe -- I believe I looked a little of that in 2020, although it wasn't

8 centrally involved in the Bush v. Gore litigation.

9 Mr. Kaufmann. I'm sorry, Ken. You said you looked a little of that in 2020 or

10 2000?

11 The Witness. Yeah, but I had -- I had much more knowledge of the Electoral

12 Count Act back in 2000 than alternate electors. So I think -- I think I knew -- I knew

13 something about alternate electors, for example, having voted in 1877, and then in 1960,

14 but I knew much less about that than I did about -- about the Electoral Count Act, which I

15 researched extensively back in 2000. And, in fact, I wrote a memo that speculated that

16 perhaps Vice President Gore could elect himself President by breaking a tie in the Senate,

17 sitting as Vice President.

18 So there was a lot of very interesting complex issues with the Electoral Count Act,

19 even back in 2000. So -- but I knew less about the alternate electors, sort of that being

20 an option.

21 BY

22 Q Sorry. Just to clarify, you say you learned -- you knew less of it. Are you

23 saying that you knew less of it in the year 2000 compared to what you knew in the year

24 2020?

25 A I think I always before the -- before the -- the November 2020 election, I
 96

1 knew much more about the Electoral Count Act going back to 2000. And I had read

2 books and articles since then, just because it was of great interest to me.

3 And I knew much less about the -- the historical precedent of 1877. I mean, I've

4 read all the books on that election, where there were two slates of electors. And I

5 vaguely knew that it happened in 1960 in Hawaii, but I didn't have a great level of detail

6 about that. But I generally knew of it.

7 And actually, there was a CNN article by Larry Lessig, the Harvard Law professor,

8 around November 8th, just after the election, suggesting that if Biden was behind in

9 Pennsylvania, that he should field alternate electors.

10 So it's something that people were already talking about even without knowing

11 how the election would come out. So it's something that in the several years before

12 2020 had been looked at by a number of scholars.

13 Q Okay. What prompted you to look into it before the 2020 Presidential

14 election?

15 A Just my general interest in the area, because I had lived through Bush v.

16 Gore, and I kept up on the scholarship related to it. And that's something that -- you

17 know, that's something that had been discussed by some of the scholars. But I just

18 didn't feel any particular expertise before November 2020.

19 Q Okay. Before the Presidential election, or before you entered into a

20 privileged relationship with the Trump campaign, did you do any writing on this topic?

21 A No, no. I just had read references to it in Law Review articles that mostly

22 dealt with the Electoral Count Act, which is a really fascinating issue of both constitutional

23 history and constitutional law. It's a really knotty -- it's a knotty issue about how to

24 analyze it and how it should be changed, if at all.

25 Q So for either -- the issues related to either the Electoral Count Act, or the
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1 appointment of alternate electors, as you described it, did you have any conversations

2 before you entered into a privileged relationship with the Trump campaign with any

3 Republican officials or representatives of the State party?

4 A Oh, no, no. Yeah, I -- I didn't know any of these, you know, people other

5 than Eastman I'd worked on a case several years before that I -- he helped me on, that I

6 brought him to assist on.

7 But so, yeah, I had no involvement with electoral politics or Republicans prior to

8 2020. My only involvement was in Bush v. Gore and helping the Democrats in 2000.

9 Q Okay. And did you discuss either of those issues, the Electoral Count Act or

10 alternate electors, with John Eastman before the 2020 Presidential election?

11 A No.

12 - Okay. Thank you.

13 Before we wrap up, maybe it makes sense for us just to take 2

14 minutes. So let's go off the record.

15 [Discussion off the record.]

16 Okay. So we're back on the record with just a few more

17 questions for Mr. Chesebro.

18 BY

19 Q Mr. Chesebro, other than your attorneys and your family members, have you

20 talked to anyone about the subpoena that you received from the select committee?

21 A No. I mean, yeah, immediate family and my attorneys. That's all. No.

22 Q Okay.

23 A Yeah. Let me think. I mean, the general -- the general subpoena, I've

24 talked with friends about the fact that I'm in the news and there's investigations going on,

25 but I've carefully avoided any reference to a subpoena, documents.

 98

1 Oh, and I've never mentioned it to anyone, anyone affiliated with the Trump

2 campaign. I've carefully avoided any contact at all with them, so -- but the thing is there

3 are friends I've talked with that have expressed concern about the investigation. And

4 so -- but never mentioned the subpoena or documents or anything that could be, you

5 know, sort of coordinating efforts with anyone else.

6 Q Has anyone, including anyone on the Trump campaign or any affiliated

7 person, given you advice about what you should say in your testimony to the select

8 committee?

9 A No.

10 Q Okay. Has anyone affected or influenced the testimony that you've

11 provided to us today, again, other than your lawyers and your family members?

12 A No. That's why I've carefully avoided any contact or any financial help of

13 any kind so that I'm not -- you know, that I can be sure I'm not influenced in any way.

14 BY
15 Q Just a follow-up to that: Has anybody reached out to you from the Trump

16 campaign personally, as opposed to through your attorney, about your subpoena or the

17 testimony or documents that the select committee requested?

18 A No. But to be candid, I don't think it's -- I don't think it would be -- Adam,

19 in spring about the person that's also -- I'll just -- Jim Troupis and I got sued civilly in -- in

20 Wisconsin. So we had some contact about the fact that we were both being sued as

21 defendants.

22 So we -- you know, we talked about the subject of that lawsuit. But then

23 with -- and then we, you know, resolved to fight it, of course. But we then, carefully,

24 decided not to have any contact with each other, just -- just to be prudent.

25 Even though that has nothing to do with your inquiry, it just felt -- it just felt like
 99

1 we should -- we should not have contact, because I think we're both sensitive to ensuring

2 that we meet our obligations to anyone investigating it, and that no one can feel that

3 we're somehow coordinating our efforts or shielding people, that sort of thing. So it's

4 something that we're just very sensitive to.

5 So that would be the only person that, you know, in -- that did anything for Trump

6 that I had any contact with, and that was back in March was the -- was the latest.

7 Q Have you communicated with John Eastman about any of the topics that

8 we've discussed today in your testimony?

9 A Oh, okay, I'm glad you asked me about that. Not about my testimony.

10 Not about anything about the inquiry directed to me, but I do recall when he was first

11 being investigated early in the year, January, February, he asked me for copies of

12 something he'd emailed me, because he couldn't find them.

13 And then I do recall he alerted me when there was a New York Times article in

14 June or July referring to him and Ginni Thomas. He told me that -- I'm sorry.

15 Then -- so -- so he asked me for some information. And then a couple times, like maybe

16 April and then in maybe June, he told me of things that had happened in his case, for

17 example, the judge finding a crime of fraud exception. He just -- because it concerned

18 me, he just alerted me that that had happened.

19 And then he alerted me about The New York Times story or whoever put it out

20 about Ginni Thomas, because that's somehow related to some communication we'd had.

21 So he was, as a courtesy, just making sure I knew about that.

22 But we -- we didn't discuss anything in terms of coordinating our efforts or, you

23 know -- so I think he was just being responsible and alerting me to something that might

24 have an impact on me.

25 Q Okay. So let's break that down a little bit. So first you mentioned that
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1 Dr. Eastman asked you for some documents that he didn't have in his possession?

2 A And I looked for them. I couldn't find them either in electronic or hard

3 copy, and I -- you know, I told him that, you know, Sorry, I couldn't find it.

4 Q What was he looking for?

5 A I think it was a copy of a memo, like one of the memos from late December.

6 I don't recall the specifics. And eventually I assume he found it, but I wasn't able to

7 help.
 101

2 [4:35 p.m.]

3 BY

4 Q Do you recall if it's the December 23rd memo that we just discussed?

5 A It was -- I just don't -- I don't recall the specifics.

6 Q Okay. So you also mentioned that he talked to you about updates in his

7 litigation with Chapman University. Can you tell me more about what he relayed to you

8 about what was going on in that litigation?

9 A My recollection was a Federal judge, I guess Judge Carter, I mean, I read

10 about it subsequently -- had ruled that a memo -- a memo attributed to me, I guess the

11 December 13th memo, had been ruled not subject to the attorney-client privilege, and he

12 just wanted me to know that, which I appreciated.

13 And then later, there was a story about suggesting that he had inside knowledge

14 from Ginni Thomas about what the court might do, and it related to some email exchange

15 between me and him that had been leaked in The New York Times. I think maybe one

16 of you quoted this. And so he just wanted to let me know that that had happened,

17 which I appreciated. So he was just, you know, just relaying things that had happened

18 that were breaking publicly that he wanted me to know about. I guess -- I'm not sure

19 why, but I thought it was a responsible thing for him to do.

20 But those are the three occasions when I recall contact from him, it was always

21 initiated, but in response to a specific, you know, concern he had, not -- you know, not to

22 share our thoughts about being investigated. But at this point, I don't think I was really

23 being investigated, so it was really more one way that he was updating him -- he was

24 updating me on things that related to me that had come up through the investigation into

25 him.
 102

1 Q The document that Dr. Eastman notified you had been ruled subject to the

2 crime-fraud exception, to attorney-client privilege, is that the same document from

3 December 13th that we discussed with you today?

4 A I believe that's the one, yes.

5 Q Okay. Other than Dr. Eastman, have you spoken to anyone? For instance,

6 have you spoken to Boris Epshteyn about anything that we've talked about in your

7 testimony today?

8 A No.

9 Q Okay. Anyone who is currently affiliated with President Trump or who

10 formerly worked on the Trump campaign who we haven't already discussed?

11 A About 2 or 3 weeks ago, maybe a month ago, Bruce Marks, who is, I think, a

12 Pennsylvania attorney that was involved in one of the cases, he contacted me asking if I

13 was essentially available to help on some sort of challenge. And I didn't say no, but, you

14 know, I -- so but I never heard back from him.

15 So I just -- but it had nothing to do with the 2000 or 2000 -- it had nothing to do

16 with the election, about the investigation into me, whatever. It was just -- I think it was

17 pending legal matters about Trump that apparently he was hoping maybe to get involved

18 in, and he wondered if I had an interest in working with him. So I just wanted to be

19 candid about that. But I've had no contact with him since, just he asked whether I might

20 be available.

21 Q Okay. Have you ever spoken with Jeff Clark, either during the post-election

22 period or since January 6th, about any involvement that he had assisting President Trump

23 after the 2020 election?

24 A Is Jeff Clark the -- the lawyer who was thought about for the -- for DOJ?

25 mean, I just -- I want to make sure I know who you're talking about.
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1 Q Yes, he was. I can represent to you that he was considered to replace Jeff

2 Rosen as acting attorney general.

3 A I have had no contact with him, and I never heard of him until a few months

4 ago in the press.

5 Q Okay. Since you mentioned the Chapman University litigation, I think that

6 it would be helpful to clarify this on the record. But, Mr. Chesebro, at numerous points

7 during your testimony to us today, in addition to asserting your Fifth Amendment rights,

8 you also asserted attorney-client privileges. We allowed you to make those assertions.

9 But so that the record is clear, our position is that consistent with Judge Carter's ruling,

10 there are numerous areas that we believe would not be protected by the relevant

11 privileges.

12 In particular, Judge Carter ruled that the December 13th email that you prepared

13 was subject to the crime-fraud exception. He more broadly ruled that efforts relating to

14 pressuring Vice President Pence related to his role in the joint session, efforts related to

15 casting alternate or fake electoral votes in the 2020 election, as well as efforts to launch

16 litigation with the intent of disrupting or delaying the joint session on January 6th, that

17 those efforts were also subject to the crime-fraud exception to attorney-client privilege.

18 He also made substantive privilege rulings freestanding from the crime-fraud

19 question. In particular, he said that communications related to the Joint Session of

20 Congress on January 6th or the meeting of electors on December 14th, 2020, were not

21 materials that were prepared in anticipation of litigation and would not be protected by

22 attorney work product. I just wanted to lay out our position there so that that's clear

23 for the record.

24 A Oh, yes, I understand.

25 The Witness. Mr. Kaufmann, there are categories where it's less clear there's a
 104

1 privilege. The campaign may waive privilege or --

2 Mr. Kaufmann. Ken, Ken, Ken. Excuse me, Ken.

3 The Witness. Yeah.

4 Mr. Kaufmann. ~ a s setting forth the committee's position on the record.

5 I don't think we need to respond to it at this point.

6 The Witness. Okay. Great. Okay. Sounds good.

7 Mr. Kaufmann. Thanks.

8 BY

9 Q All right. So obviously we've asked you a number of questions today,

10 Mr. Chesebro. I can represent to you that these are not all the questions that we plan

11 to ask or all the documents that we would have shown you. Given your invocation of

12 your Fifth Amendment rights as well as other privileges to the questions posed, I think it

13 makes sense to end here.

14 But before we end, I'll just ask, do you intend to invoke Fifth Amendment rights or

15 any related privileges to any additional questions along the lines of those that we've

16 already asked you today?

17 A Yes, I would, because if I didn't, I would risk waiving the Fifth Amendment

18 privilege, which, of course, I don't want to do.

19 Understood. So, with that, those are all of the questions that I

20 have for you today. Before we go off the record, I just sincerely want to thank you for

21 coming in and speaking with us today, and I'm sure that my sentiments are echoed by my

22 colleagues as well.

23 And, with that, I think we can go off the record.

24 [Whereupon, at 4:50 p.m., the deposition was concluded.]

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1 Certificate of Deponent/Interviewee

4 I have read the foregoing _ _ pages, which contain the correct transcript of the

5 answers made by me to the questions therein recorded.

10 Witness Name

11

12

13

14 Date

15