Established Fact
[Established Fact – As to investigations being opened] Michigan Attorney General Dana Nessel, acting in her official capacity and in coordination with the Michigan State Police, launched investigations between November 2020 and July 2021 targeting private citizens who had spoken publicly about election irregularities – specifically including individuals who had submitted sworn affidavits and testimony to Michigan legislative committees regarding their personal observations of election administration problems. The targets of these investigations had not been found to have committed any crime; they were investigated because of the content of their political speech and their sworn legislative testimony. The use of official prosecutorial and law enforcement resources to investigate citizens for the content of their political speech and sworn government testimony – rather than for any specific unlawful act – raises some of the most serious civil rights concerns in the information control context. A prosecutor who opens investigations based on the viewpoint expressed in a citizen’s speech, rather than on evidence of a specific crime, acts under color of law to chill protected First Amendment activity. This conduct may implicate 18 U.S.C. § 242 (deprivation of rights under color of law by a person acting as a state official), and if coordinated with federal agencies or other states’ officials, 18 U.S.C. § 241 (conspiracy against rights).
Citations
NPR, “Former Michigan GOP attorney general nominee is charged in voting machine breach,” August 1, 2023. DePerno charged by special prosecutor DJ Hilson with undue possession of a voting machine, willfully damaging a voting machine, and conspiracy — charges arising from alleged physical access to tabulators in hotel rooms, not from any public speech or election integrity claim. Nessel requested special prosecutor because DePerno had become her political opponent, creating a conflict. Available at: https://www.npr.org/2023/08/01/1142599350/deperno-michigan-voting-machine-breach-charges.
Jonathan Oosting, “Michigan AG, police to probe false election fraud claims after GOP report,” Bridge Michigan, July 8, 2021. Nessel spokesperson Lynsey Mukomel: office “has accepted” the committee’s invitation to investigate; Michigan State Police “is also assisting in the matter.” McBroom quote: “No one has free speech if they’re committing a crime, and committing fraud is a crime. We found circumstantial, but substantial, evidence that some people were committing fraud and extorting people for money.” Colbeck quote: accused Republicans of “weaponizing the government against those who disagree with their assessment of election fraud”; reported he had not been contacted by the AG’s office or MSP as of that date. DePerno: had “raised more than $384,000” for an “election fraud defense fund”; did not immediately respond to comment request. Available at: https://bridgemi.com/michigan-government/michigan-ag-police-probe-false-election-fraud-claims-after-gop-report/
The Center Square (July 9, 2021): https://www.thecentersquare.com/michigan/article_087ba74a-e0bc-11eb-874b-b71ee52757ce.html; Bridge Michigan / Politifact (July 9, 2021): https://www.politifact.com/article/2021/jul/09/michigan-will-investigate-people-who-spread-electi/
Detroit News (June 23, 2021): https://www.detroitnews.com/story/news/politics/2021/06/23/michigan-senate-recommends-attorney-general-investigate-false-election-claims/5312166001/; CBS News summary (June 24, 2021): https://www.cbsnews.com/news/michigan-senate-no-election-fraud-2020/