What the First Guilty Plea in Trump’s Georgia Prosecution Tells Us About DA Willis’s Strategy

Posted in: Criminal Law

On Friday, defendant Scott Hall, a Georgia bail bondsman and political operative, became the first of Donald Trump’s co-defendants in Fulton County, Georgia, to plead guilty to charges brought as part of Trump’s alleged conspiracy to overturn the 2020 election.

For those who worried that Fulton County District Attorney Fani Willis had made a strategic error by asking the grand jury to indict so many co-defendants along with Trump—take heart!

The plea helps us see Willis’s roadmap toward a single trial next year of a small number of major defendants. It would likely include Trump and his top lieutenants—Rudolph Giuliani, Mark Meadows, John Eastman, and others unwilling to plead.

The August 13 Fulton County grand jury indictment describes powerful evidence against them, and Willis’s aim from the start was plainly to add additional testimony against them via guilty pleas and cooperation agreements from the less important co-conspirators.

Prosecutors’ strategies always require adjustment as defendants’ tactics unfold. In the Georgia case, the speedy trial demands of Trump lawyers Sidney Powell and Kenneth Chesebro are clear examples. More on that in a moment.

Hall’s guilty plea and the indictment’s allegations against the less central co-defendants tip us off as to how Willis’s strategy might play out in two of the main schemes that comprise the alleged RICO conspiracy: the scheme to steal election machines and the fake elector scheme. Clearly, one of her key tactics involves taking advantage of the strong incentive that indicted attorneys have to avoid felony convictions, which could risk their bar licenses.

The scheme to steal election machinesTrump lawyer Sidney Powell is Willis’s primary target in this plot.

The Fulton County indictment puts Trump lawyer Sidney Powell at the center of a scheme that resulted in the January 7, 2021 theft of Dominion Voting System machine data from the Coffee County, Georgia, election office. Powell’s impending October 23 trial date explains why Willis’s office prioritized securing Hall’s cooperation agreement to testify against Powell.

Her indicted co-conspirators in the scheme were Hall; Cathleen Latham, the former Republican party Coffee County chair; and Misty Hampton, the former Coffee County election supervisor. Latham and Hampton allegedly gave Hall and others unlawful access to the Dominion voting machines in the county election offices.

Hall’s testimony against Powell, Latham, and Hampton will likely be corroborated by testimony from four unindicted co-conspirators—“Individuals 25-29”—who, according to the indictment, “unlawfully accessed certain data copied from Dominion Voting Systems equipment” in Coffee County.

We may soon see cooperation agreements and pleas from Latham and Hampton. Their testimony would add to the pressure on Powell to plead to a lesser offense.

Coming to an agreement has advantages for both sides. For Willis, she would like to secure Powell’s information and possible testimony against higher-ups Trump and Giuliani.

As importantly, Willis would like to avoid a trial of her entire RICO case against Powell and co-defendant Kenneth Chesebro, whose trial is also set for October 23. Such a trial would give Trump and others the advantage of seeing the prosecution’s evidence before their own trial.

For Powell, with compelling testimony arrayed against her, she would likely welcome any way to avoid a serious felony conviction. A lengthy prison sentence is not the only thing at stake for her; in addition, felony convictions for crimes involving “moral turpitude” and certain misdemeanors subject attorneys to “compulsory discipline” in Texas, where she has her law license. Discipline could mean disbarment and loss of her professional capacity to earn.

It’s likely that prosecutors could offer Powell a plea to lesser charges that would not subject her to disbarment. Willis might be unwilling to do so; after all, Powell’s culpability is significant. Then again, Willis might decide that offering such a plea is a reality cost that comes with speedy trial requirements and a prosecutor’s strong desire not to put on her entire case twice.

The fake elector schemeLawyer Kenneth Chesebro, Willis’s likely immediate target for a plea deal in this scheme, with others to follow.

The same thinking could lead Willis to offer defendant Kenneth Chesebro a plea to misdemeanor charges. Many regard him as the original legal architect—even before defendant John Eastman—of the plan to create fake electors as a basis for Vice President Mike Pence to reject or delay Congress’s January 6 certification of President Biden’s election.

Chesebro clearly has important testimony he could give against Giuliani and Eastman. Chesebro’s multiple email exchanges recounted in the indictment tell us that he was communicating closely with both lawyers about the plan to disrupt the certification.

There would surely have been multiple conversations as well. Indeed, the indictment alleges that Giuliani had asked Chesebro to “run point” on the fake elector scheme in six contested states.

To increase pressure on Chesebro, Fulton County prosecutors are undoubtedly having quiet negotiations with lawyers for two other co-defendants, David Shafer and Mike Roman. They clearly have testimony to offer against Chesebro.

Shafer is the former Georgia GOP chair who also served as a fake Trump elector. Roman was a Trump campaign official who worked with Giuliani overseeing the fake elector plot.

Between December 10 and December 14, 2020, when the fake electors met and signed their fraudulent “electoral certificates,” the indictment alleges that Chesebro had multiple email communications coordinating the scheme with both men.

It would not be shocking to see Roman and Shafer in court before October 23 pleading guilty to misdemeanors or low-level felonies and agreeing to testify.

In New York, where Chesebro holds his law license, conviction for a felony means automatic disbarment. But a misdemeanor conviction may merit a lesser degree of discipline. Hence, one can see the powerful incentive for Chesebro to plead to a misdemeanor, if offered.

The fake elector schemeWillis’s other less immediate targets for guilty pleas.

There’s less urgency to obtain pleas from three other lawyers—co-defendants Ray Stallings Smith, Trump’s local attorney of record; Robert Cheeley, a Trump ally; and Jenna Ellis, Giuliani’s frequent sidekick in making false claims after the 2020 election. Their potential cooperators’ testimony as to the fake elector scheme relates mainly to Giuliani and Eastman, whose trial dates have not yet been set.

The indictment alleges that in December 2020, all three joined Giuliani and occasionally Eastman in soliciting state legislators to appoint fake Trump electors.

The indictment also alleges that Ellis was present with Trump, Meadows, and Giuliani when they met in the White House on November 25, 2020, with a delegation of legislators from Pennsylvania.

Like other lawyers, she, Smith, and Cheeley are likely to be interested in a misdemeanor plea that helps them avoid disbarment.

Even with the broad discretion that prosecutors have to shape plea offers, making a deal is never assured. Different lawyers and defendants evaluate the strengths and weaknesses of the cases against them differently.

Still, described above are nine defendants—10, if Hall’s guilty plea is included—whom one could see agreeing to plead. In addition, there are four other relatively minor defendants who might be motivated to work out a deal.

Thus, it’s not hard to imagine how Willis set out to try a single RICO case with four to six major defendants. Of course, her strategy will not turn out exactly as she planned it. But one wouldn’t be smart to bet against it coming close.

Comments are closed.