Behind the criminal charges brought against Michigan Trump allies in voting machine probe

An unusual series of events preceded criminal charges brought Tuesday against two Republicans — former Michigan attorney general candidate Matt DePerno and former state Rep. Daire Rendon, R-Lake City — for allegedly gaining improper access to voting machines in the wake of the 2020 election.

The rare moves made by the special prosecutor — Muskegon County Prosecutor DJ Hilson — in the case include asking a judge to preemptively interpret the law the pair are now accused of violating and convening a grand jury, which ultimately brought the charges. Legal experts said the process reflects a cautious, deliberate approach.

DePerno and Rendon both face multiple felony charges from a citizen's grand jury impaneled in the matter. They are both charged with violating a Michigan election law prohibiting who can access tabulators.

Voting machine probe: Former AG candidate DePerno, state rep Rendon charged with violating Michigan election law

Nessel referred probe to special prosecutor

Michigan Attorney General Dana Nessel's Office initially carried out an investigation alongside the Michigan State Police following a request from the Michigan Secretary of State's Office to look into third-party access to voting equipment used in the 2020 election.

But Nessel ran into a problem during the course of the investigation: She was campaigning against one of the individuals who allegedly orchestrated a plot to improperly access voting machines.

"When this investigation began, there was not a conflict of interest. However, during the course of the investigation, facts were developed that DePerno was one of the prime instigators of the conspiracy," a petition for the appointment of a special prosecutor from Nessel's office states.

The petition requested the Prosecuting Attorneys Coordinating Council to appoint the special prosecutor to "handle any prosecution that may result" against a group of allies of former President Donald Trump who allegedly participated in the voting machine plot.

Last fall, the council named Hilson as the special prosecutor in the matter.

A grand jury brought the charges

But rather than bring charges himself, Hilson petitioned to convene a citizen's grand jury. In Michigan, such a grand jury is composed of 13 to 17 grand jurors. It takes at least nine grand jurors to agree to bring an indictment under Michigan law.

Grand juries are rarely used by prosecutors in Michigan, according to legal experts.

"Prosecutors have the complete authority to file charges on their own," said Detroit criminal defense lawyer Steve Fishman. But in a politically sensitive probe like the one handed to Hilson, it can help provide a buffer between the prosecutor and the charges a grand jury brings.

"It is a way to provide political cover in situations where you have rabid partisans who are looking for reasons to attack elected prosecutors," Fishman said. "At the same time, it is often a good thing for citizens to have the opportunity to weigh in on the charging process."

Former Macomb County Prosecutor Carl Marlinga told the Free Press that a grand jury proceeding serves a practical purpose for prosecutors too.

"You could call it a political reason, but it's also just a good commonsense reason that if you have a subject matter which might be controversial, it's simply a good thing to do to tell the world that, 'Look, I did not go into a room, close the door and decide this myself,' " Marlinga said.

It can also give a prosecutor an opportunity to receive feedback from everyday citizens serving as grand jurors. "And that's very useful to you then when you are going to actually try the case before a 12-person regular trial jury because you've already heard from citizens what their feedback is and what their thoughts are about the case," he said.

Prosecutor asked court to interpret the law

Hilson also made the unusual move of asking a judge to weigh in on an election law at the heart of the probe stipulating who can access voting machines and when. Hilson explained that he decided to take the step after he was accused of misunderstanding the law by one of the individuals he was asked to investigate.

"This isn't something that we would normally do, but because that controversy was created, I felt that it was in the best interest to say, 'OK, if you think the law is interpreted one way, but I think it's interpreted another, there's an action, there's a statutory action that I as a prosecutor have the right to explore. Let's just have the court figure it out,' " Hilson previously told the Free Press.

An Oakland County Circuit Court judge ultimately ruled that the Michigan election law prohibiting the "undue possession" of voting machines bars possession without the authorization of the Secretary of State or a court order. The grand jury charged DePerno and Rendon with violating that law.

Nessel called Hilson's request for the court to interpret the law an "additional, extraordinary measure" in a statement Tuesday.

At least one of the individuals Nessel's office asked the special prosecutor to consider bringing charges against — lawyer Stefanie Lambert Junttila — has already threatened to sue Hilson based on his handling of the case.

"Grand juries are rare. He could have charged this from this desk, but he didn't," Lambert Junttila said during an interview on a conservative podcast last week. She also accused him of misrepresenting the election law to the grand jury even after the court's ruling interpreting it. "I will sue him, absolutely. It’s his job to know the law."

Hilson said in a statement that the process is still ongoing. Meanwhile, DePerno and Rendon were arraigned and released on personal bond.

Contact Clara Hendrickson: [email protected] or 313-296-5743. Follow her on Twitter @clarajanehen.

This article originally appeared on Detroit Free Press: How Michigan Trump allies charged in voting machine probe