On Tuesday morning, Jenna Ellis became the third Donald Trump-allied lawyer to plead guilty in Fulton County, Ga., to state criminal charges related to Trump’s efforts to overturn the results of the 2020 presidential election in Georgia. She joins Sidney Powell and Kenneth Chesebro in similar pleas, with each of them receiving probation and paying a small fine, and each of them cooperating with the prosecution in its remaining cases against Trump and his numerous co-defendants.
The Ellis, Powell and Chesebro guilty pleas represent an advance for both the state election prosecution in Georgia and the federal election prosecution in Washington. While their guilty pleas came in the Georgia case (they’re not charged in the federal prosecution, though Powell and Chesebro have been identified as unindicted co-conspirators in that case), the information they disclose could be highly relevant to Jack Smith, the special counsel investigating Trump.
Perhaps as important, or even more important, the three attorneys’ admissions may prove culturally and politically helpful to those of us who are attempting to break the fever of conspiracy theories that surround the 2020 election and continue to empower Trump today. At the same time, however, it’s far too soon to tell whether the prosecution has made real progress on Trump himself. The ultimate importance of the plea deals depends on the nature of the testimony from the lawyers, and we don’t yet know what they have said — or will say.
To understand the potential significance of these plea agreements, it’s necessary to understand the importance of Trump’s legal team to Trump’s criminal defense. As I’ve explained in various pieces, and as the former federal prosecutor Ken White explained to me when I guest-hosted Ezra Klein’s podcast, proof of criminal intent is indispensable to the criminal cases against Trump, both in Georgia and in the federal election case. While the specific intent varies depending on the charge, each key claim requires proof of conscious wrongdoing — such as an intent to lie or the “intent to have false votes cast.”
One potential element of Trump’s intent defense in the federal case is that he was merely following the advice of lawyers. In other words, how could he possess criminal intent when he simply did what his lawyers told him to do? He’s not the one who is expected to know election laws. They are.
According to court precedent that governs the federal case, a defendant can use advice of counsel as a defense against claims of criminal intent if he can show that he “made full disclosure of all material facts to his attorney” before he received the advice, and that “he relied in good faith on the counsel’s advice that his course of conduct was legal.”
There is a price, though, for presenting an advice-of-counsel defense. The defendant waives attorney-client privilege, opening up both his oral and written communications with his lawyers to scrutiny by a judge and a jury. There is no question that a swarm of MAGA lawyers surrounded Trump at each step of the process, much like a cloud of dirt surrounds the character Pigpen in the “Peanuts” cartoons, but if the lawyers themselves have admitted to engaging in criminal conduct, then that weakens his legal defense. This was no normal legal team, and their conduct was far outside the bounds of normal legal representation.
Apart from the implications of the advice-of-counsel defense, their criminal pleas, combined with their agreements to cooperate, may grant us greater visibility into Trump’s state of mind during the effort to overturn the election. The crime-fraud exception to attorney-client privilege prevents a criminal defendant from shielding his communications with his lawyers when those communications were in furtherance of a criminal scheme. If Ellis, Powell or Chesebro can testify that the lawyers were operating at Trump’s direction — as opposed to Trump following their advice — then that testimony could help rebut Trump’s intent defense.
At the same time, I use words like “potential,” “if,” “may” and “could” intentionally. We do not yet know the full story that any of these attorneys will tell. We only have hints. Ellis said in court on Tuesday, for example, that she “relied on others, including lawyers with many more years of experience than I, to provide me with true and reliable information.” Indeed, Fani Willis, the Fulton County district attorney, has indicted two other attorneys with “many more years of experience” — Rudy Giuliani and John Eastman. If Ellis’s court statement is any indication, it’s an ominous indicator for both men.
If you think it’s crystal clear that the guilty pleas are terrible news for Trump — or represent that elusive “we have him now” moment that many Trump opponents have looked for since his moral corruption became clear — then it’s important to know that there’s a contrary view. National Review’s Andrew McCarthy, a respected former federal prosecutor, argued that Powell’s guilty plea, for example, was evidence that Willis’s case was “faltering” and that her RICO indictment “is a dud.”
“When prosecutors cut plea deals with cooperators early in the proceedings,” McCarthy writes, “they generally want the pleading defendants to admit guilt to the major charges in the indictment.” Powell pleaded guilty to misdemeanor charges. Ellis and Chesebro both pleaded to a single felony charge, but they received punishment similar to Powell’s. McCarthy argues that Willis allowed Powell to plead guilty to a minor infraction “because minor infractions are all she’s got.” And in a piece published Tuesday afternoon, McCarthy argued that the Ellis guilty plea is more of a sign of the “absurdity” of Willis’s RICO charge than a sign that Willis is closing in on Trump, a notion he called “wishful thinking.”
There’s also another theory regarding the light sentences for the three lawyers. When Powell and Chesebro sought speedy trials, they put the prosecution under pressure. As Andrew Fleischman, a Georgia defense attorney, wrote on X, the site formerly known as Twitter, it was “extremely smart” to seek a quick trial. “They got the best deal,” Fleischman said, “because their lawyers picked the best strategy.”
As a general rule, when evaluating complex litigation, it is best not to think in terms of legal breakthroughs (though breakthroughs can certainly occur) but rather in terms of legal trench warfare. Think of seizing ground from your opponent yard by yard rather than mile by mile, and the question at each stage isn’t so much who won and who lost but rather who advanced and who retreated. Willis has advanced, but it’s too soon to tell how far.
The guilty pleas have a potential legal effect, certainly, but they can have a cultural and political effect as well. When MAGA lawyers admit to their misdeeds, it should send a message to the Republican rank and file that the entire effort to steal the election was built on a mountain of lies. In August, a CNN poll found that a majority of Republicans still question Joe Biden’s election victory, and their doubts about 2020 are a cornerstone of Trump’s continued political viability.
Again, we can’t expect any single thing to break through to Republican voters, but just as prosecutors advance one yard at a time, opposing candidates and concerned citizens advance their cultural and political cases the same way. It’s a slow, painful process of trying to wean Republicans from conspiracy theories, and these guilty pleas are an important element in service of that indispensable cause. They represent a series of confessions from the inner circle and not a heated external critique.
Amid this cloud of uncertainty, there is one thing we do know: With each guilty plea, we receive further legal confirmation of a reality that should have been plainly obvious to each of us, even in the days and weeks immediately following the election. Trump’s effort to overturn the election wasn’t empowered by conventional counsel providing sound legal advice. It was a corrupt scheme empowered by an admitted criminal cabal.
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Source: Elections - nytimes.com
