What’s the Deal with the Plea Deals?

Welcome back to The Collision. It’s been quite a week, and we’re not even talking about all the machinations within the House Republican conference to finally (finally!) select a new speaker of the House. On tap today: plea deals, immunity deals, and a couple of remarkable moments in Donald Trump’s civil trial in New York. Let’s dive in.

The Docket

• As his trial was beginning last Friday, Kenneth Chesebro—a former Trump campaign lawyer—reached a plea deal with Fulton County District Attorney Fani Willis that was similar to the deal Willis made one day earlier with his co-defendant, Sidney Powell. Chesebro admitted to one felony count of conspiring to put forth a slate of Trump electors from Georgia despite Joe Biden winning the state. Trump and another attorney, John Eastman, are among the co-defendants in the case who have pleaded not guilty.
• Another Trump lawyer indicted in Fulton County, Jenna Ellis, pleaded guilty on Tuesday to a felony charge of “aiding and abetting false statements and writings” as part of the effort to change the outcome of the election in Georgia. A tearful Ellis offered a statement during her plea entry in the Atlanta courthouse, telling the judge she regretted her actions.
• Moving to the federal case involving Trump’s election interference, ABC News reported this week that Mark Meadows, Trump’s final and perhaps most loyal White House chief of staff, had been granted immunity in order to testify before a grand jury earlier this year. George Terwilliger, an attorney for Meadows, told CBS News that the ABC News story was “largely inaccurate” but has not otherwise commented. Meadows was also among those Trump associates indicted in Fulton County, where he has pleaded not guilty.
• Proceedings in Trump’s civil trial in New York ended on Wednesday with Trump reportedly “storming out” of the courtroom following testimony of his former attorney, Michael Cohen. That was just the climax of a wild day, which also saw Trump take the stand for the first time in a special hearing convened to determine whether the former president violated a limited gag order imposed by Judge Arthur Engoron. 
• At one point during a break in the trial, Trump made a comment to the cameras outside the courtroom about a “partisan” sitting beside Engoron that the judge interpreted as a possible swipe at his clerk, in violation of the gag order. When Trump claimed he was talking about Cohen, Engoron didn’t seem to buy it, fining Trump $10,000 and refusing to budge when Trump’s attorneys asked him to reconsider. “I’ve reconsidered, the ruling stands,” Engoron said. “Don’t do it again or it’ll be worse.”
• Speaking of, Judge Tanya Chutkan temporarily paused her own gag order in Trump’s election interference case—which barred Trump from speaking out against the judge, potential witnesses, and court workers—as the Trump legal team appeals it. Special counsel Jack Smith filed a request on Wednesday to reinstate the order. (Check out Sarah and David’s conversation about the gag order on a recent episode of Advisory Opinions.)

Please Plea Me

In the days since Sidney Powell, Kenneth Chesebro, and Jenna Ellis entered their guilty pleas in Fulton County, there’s been plenty of commentary about what it means that three lawyers in Trump’s orbit have agreed to testify against the former president.

On the one hand, Team Exploding Fireball will tell you that this is proof that Donald Trump is about to go down. His co-defendants, after all, keep pleading guilty to crimes that prosecutors have linked to Trump himself. Of course, members of Team Exploding Fireball are usually the same people who treated every development in the Mueller investigation as evidence that the special counsel was about to release proof that Trump had illegally colluded with the Russians to influence the 2016 election. 

On the other hand, Team Dud will tell you that the guilty pleas in Georgia are proof that Fani Willis’ case is incredibly weak. After all, she did charge these people with a zillion felonies worth 20 or more years in prison, and now they’re writing an apology letter with no prison time. That said, it can be hard to see so many guilty pleas and think it’s all good news for the former president. 

The correct answer: We don’t know. And before we go any further, let’s recap each plea deal on its own.

Sidney Powell faced seven felony charges related to her role in breaching election systems in Coffee County, Georgia. She pleaded guilty to six misdemeanors on October 19, the day before her trial was set to begin. As part of that plea, she agreed to serve six years of probation, pay $6,000 in restitution, and write a letter of apology to the citizens of Georgia.

Originally charged with seven felonies, Kenneth Chesebro agreed to plead guilty to a single felony—one count of conspiracy to commit filing of false documents related to the fake electors scheme. He agreed to five years of probation and to pay $5,000 in restitution and a written apology.

Jenna Ellis, meanwhile, had been hit with two felonies in the Georgia case. She pleaded guilty to one of them—aiding and abetting false statements—and also agreed to five years of probation, $5,000 in restitution payments, and a written apology.

There are a few reasons prosecutors agree to plea deals like these. They may, for example, know that the small-fish defendant has evidence they can use against a bigger-fish defendant. If they can’t get this evidence anywhere else, they might offer to reduce charges against the small fish. The small fish often agrees, because the prosecutors have the small fish dead-to-rights on much bigger charges with a much lengthier prison sentence.

The juicer the info, the more reduced the sentence will be from the original charging document. Seven felonies pleaded down to six misdemeanors? Powell must have something really juicy on the big guy! As evidenced by a recent New York Times headline—“Sidney Powell’s Plea Deal Could Be a Threat to Trump”—this is the scenario that Team Exploding Fireball is envisioning.

The potential problem with that theory is that there’s another reason prosecutors might pursue a plea deal. If the prosecution believes their case is weak enough that they risk an acquittal at trial, they often throw a bunch of spaghetti against the wall in the indictment—spaghetti here being charges that come with lengthy jail sentences—and hope that a defendant doesn’t want to take their chances with a jury. 

In cases like those, you’ll often see plea agreements that don’t include any prison time. The prosecution saves face by securing a guilty plea, and the defendant is happy to take a deal that keeps them out of jail. And a $5,000 fine? That’s less than these guys are going to have to pay their attorneys to read the document with the $5,000 fine agreement. 

So now we’re back to these plea deals in Georgia. Maybe they mean the prosecution knows their case is weaker than the sprawling indictment lets on. Or maybe these defendants were able to convince the prosecution that they’ve got the goods on some bigger fish. How can we know for sure? We can’t. Not until or unless we know what they’ll offer as testimony.

Sarah’s View

Here’s my hunch, having been in a few private meetings with Donald Trump: For better or worse, there’s very little of note that I’ve ever heard Trump say in private that he didn’t then say in public. There’s not some secret Trump lurking behind closed doors. So the idea that these guys can testify—credibly—to some smoking gun statement from the former president that isn’t already available on Twitter is possible, sure, but unlikely to me.

And, yes, the prosecution knows exactly what these witnesses can testify to and what they got in exchange for this plea agreement. So now we wait. 

As I’ve said before, the Georgia case has broad laws on its side but I thought the indictment itself was less compelling than meets the eye. By bringing the case against 19 defendants, the prosecutor was guaranteed big headlines—but also big headaches. Compare that case to the federal election fraud case brought by special counsel Jack Smith, which is narrower in scope and focused on Trump’s words and actions.

This week, ABC News reported that Mark Meadows, Trump’s former chief of staff, had been granted immunity to testify in front of a federal grand jury. According to the report, Meadows testified that “he repeatedly told Trump in the weeks after the 2020 presidential election that the allegations of significant voting fraud coming to them were baseless.” Bloomberg News added that Meadows was also threatened with being held in contempt of court if he did not testify.

Of course, we already knew that dozens of people had told Trump his election fraud claims were baseless, including his own attorney general. Meadows has also been charged in the Georgia case. I guess we’ll see what kind of deal they’re willing to offer for that testimony down in the Peach State.

Verbatim

Here’s a choice quotation from Jenna Ellis’ statement at her hearing in Fulton County this week:

“If I knew then what I know now, I would have declined to represent Donald Trump in these post-election challenges. I look back on this whole experience with deep remorse.”

One More Thing

Something to watch, via CNN:

A Colorado judge has rejected another attempt by former President Donald Trump to throw out a lawsuit seeking to block him from the 2024 presidential ballot based on the 14th Amendment’s “insurrectionist ban.”

The ruling Wednesday from Colorado District Judge Sarah Wallace clears the way for an unprecedented trial to begin next week, to determine if Trump is disqualified from returning to the White House because of his role in the January 6, 2021, insurrection.

This is the fifth unsuccessful bid by Trump to throw out the Colorado case, which is one of several pending suits trying to derail his candidacy based on the 14th Amendment.