Originally Authored at TheFederalist.com
In the past week, the office of Fulton County District Attorney Fani Willis finalized “plea agreements” with three significant members of the group of 18 co-defendants indicted in Willis’ rambling Racketeer Influenced and Corrupt Organizations (“RICO”) case filed this past August against former President Donald Trump and others.
The pleas were with three prominent lawyers in the post-2020 election challenges: Sidney Powell, Kenneth Chesebro, and Jenna Ellis. Each was charged with multiple felonies, including the lead RICO count, carrying potential maximum penalties of many years of incarceration. The indictment purports to allege serious felonies based on serious wrongdoing that supposedly threatened the very fabric of our democracy, but you wouldn’t think so from the actual deals Willis struck.
There is no legitimate prosecutorial reason for Willis to have struck these particular deals. Rather, these deals are designed to bolster the perceived, but not the real, strength of her case against the key defendants, both now, via the media, and later, by parading a string of “guilty” co-defendants as witnesses before the jury.
Prosecutors Dropped Charges and Jail Time
Powell pleaded guilty to seven misdemeanors and no felonies, and the prosecutors moved to dismiss the seven felonies, including the RICO count they had charged against her. Chesebro pleaded guilty to one felony and the prosecutors moved to dismiss the remaining six felonies they had charged him with in the indictment, including the RICO count. Ellis pleaded guilty to a newly tailored felony count of aiding and abetting another defendant (Rudy Guiliani) in his alleged making of a false statement, and the prosecutors moved to dismiss the two felonies charged against her, including the RICO count.
Thus, none of these three defendants pleaded guilty to the most serious charges against them. Far, far from it. Further, in all three deals, the prosecutors agreed not to oppose “First Offender” treatment for the cases under a Georgia statute that permits a judge to accept guilty pleas from those with no prior criminal records, and then later remove the conviction from their record entirely if they satisfactorily complete conditions of probation.
The prosecutors also agreed to recommend probation-only sentences to the court in all three cases, which the judge duly imposed. None of these three defendants will spend one day in jail or have a conviction on their records for their role in supposedly undermining American democracy itself.
When a prosecutor charges multiple, serious felonies and offers plea deals for significantly less serious charges, carrying no jail time, and the opportunity to have the entire case cleared off the defendant’s record, it is usually a clear sign that the prosecutor has overcharged the case and was not going to be able to prove the charges as alleged if forced to go to trial on them.
Deals Too Sweet to Turn Down
Prosecutors are simply not in the habit of developing serious felony cases and then offering plea deals that amount to a legal “nothingburger” for the defendants involved. Even when trying to “flip” defendants to testify against others in the case, the normal prosecutorial practice is to still require some significant pain in the plea deal with cooperating defendants because if they don’t, then the defense lawyers for the defendants who go to trial can argue to the jury that the deals are so sweet they shouldn’t believe a word the flipped defendants are saying.
That is not what is happening with the plea deals in Trump’s Georgia case, however. These deals with Powell, Chesebro, and Ellis are really, really sweet deals. Deals so sweet that no rational defense lawyer could advise the client to reject them.
The prosecutors even agreed to ask the judge to include language in the sentencing order that said the charges to which they were pleading were not crimes of “moral turpitude,” because such crimes can make it more likely that a defendant who is a lawyer will lose their law license. These prosecutors did everything that could be done to craft these pleas in such a way that the defendants simply could not turn them down.
This extreme and unusual solicitude extended even to sculpting the factual basis for the guilty pleas, another area where prosecutors normally require the defendants to swallow bitter medicine, but did not in these pleas. This had to be done because in order for a plea to be accepted by the court, the defendant has to agree not just to plead guilty in the abstract, but rather that he or she is guilty of a specific crime based on specific facts. And the prosecutors and defense lawyers, (and defendants who are lawyers) cannot outright lie to the court about what the facts are on which the plea is based, or whether those facts constitute the offense to which the person is pleading.
The factual basis that the prosecutors presented to the judge in the plea hearing in each of these cases was clearly massaged to allow the defendants to honestly agree that the stated facts were true, but unusually here those facts did not make out the elements of the charged offense, or they omitted facts which might have caused a judge to question whether the offense was, in fact, established.
In Ellis’ case, this manipulation was taken to a ridiculous level. Her guilty plea was one in name only. She never admitted that she knew that the allegedly false statements were false at the time they were made, which is a fundamental requirement for a criminal false statement. Rather, she said that “if she knew then what she knows now,” she would have acted differently.
Even her assertion that she failed to do “due diligence” at the time is not “reckless disregard for the truth” under the normal legal understanding of that term. It is also extremely unlikely that a merely “reckless” statement would satisfy the Georgia false statements statute, which requires a “knowing and willful” false statement.
Significantly, the prosecutor’s factual basis did not say that the seven statements made by Guiliani were false due to contrary facts. For example, it was determined to not be true that 10,315 or more dead people voted in Georgia. Rather, the factual basis offered to the judge was only that Georgia’s investigations had determined there was no “widespread fraud” that “could have affected the outcome of the 2020 presidential election in Georgia.”
A Transaction, Not a Favor
In reality, Ellis’ plea was a farce. It was a concoction between the prosecutors’ office and her counsel to “find something” she could plead to that they could smuggle past a judge who wouldn’t critically question an agreed plea deal (although that is supposed to be one of the court’s roles in that situation).
The prosecutors in this case went to these extreme lengths for an unusual reason. They aren’t doing it out of the goodness of their hearts. It’s a transaction. They are getting something they can’t otherwise get. And the reason the prosecutor can’t get it from witnesses — without the deal — is that defendants have a 5th Amendment right to be silent at trial.
Prosecutors cannot call any defendant as a witness in trial, even if they only want them to incriminate others, not themselves. The only way prosecutors can get juicy testimony from these witnesses is to do a deal with them: a plea deal if they have been charged, or potentially an immunity deal such as the one that Special Counsel Jack Smith allegedly struck with Mark Meadows last week in Trump’s DC federal case.
But that is not what is going on in the Georgia case. These three defendants will not give the prosecution any testimony or evidence that the prosecutors don’t already have from non-charged witnesses, or the statements, documents, and memos previously authored by all of these defendants, which are admissible at the trial already. The testimony of Powell, Chesebro, and Ellis is extremely unlikely to add anything new to the case. It is highly doubtful any of them will testify that they or Trump or any of the other many lawyers involved said, knew, or believed they were doing something illegal at the time of the events in 2020 and early 2021.
It’s for this reason that Trump and his lawyers this week made only mild statements about these pleas, or pointed out that if the three testified truthfully, as required under their plea deals, it would not hurt Trump and may even help him.
‘Guilty’ Witnesses Don’t Need to Testify
Some might think that the prosecutors could present the fact that these defendants plead guilty to the jury at later trials as proof of the guilt of defendants who go to trial. However, Supreme Court precedent forbids the direct use of the guilty pleas of witnesses to prove that other defendants who go to trial are also guilty. The prosecutors will not tell the jury something like, “Ms. Ellis plead guilty to helping Mr. Guiliani make a false statement and that is evidence that he did make a false statement.” Nor can prosecutors simply introduce the fact of the guilty pleas or documents about the guilty pleas as exhibits in the trials of other defendants.
These practices violate the rights of the defendants going to trial to confront their accusers under the 5th Amendment, but they also do not constitute relevant evidence of the guilt of the person on trial. The fact that one person agrees that their conduct is illegal in a plea deal doesn’t prove that another person is guilty, even in conspiracy or aiding and abetting scenarios, and thus the courts don’t permit prosecutors to prove their cases this way.
So, in short, there is no legal reason for Willis to have entered into these kinds of super-sweet pleas with these defendants in this case. But she did so. And the reason Willis did so is that in practical reality, if/when Trump or Guiliani or Eastman come to trial in this case, she will do covertly what the law doesn’t permit her to do overtly.
The prosecutors won’t argue to the jury that Trump, Guiliani, or Eastman are guilty because Powell, Chesebro, and Ellis, (and potentially others by then) plead guilty. They won’t have to argue that. They will simply parade a line of witnesses who have all pleaded guilty to something in this case before the jury. The jury will get the message.
And thus, the true purpose of these nothing burger pleas is revealed: not to acquire evidence to present, but to create a guilty parade, now, and in the show trial to come.
Leslie McAdoo Gordon is the principal of McAdoo Gordon & Associates, P.C., founded in 2003. She provides criminal defense for individuals facing misdemeanor and/or felony charges, as well as “white collar” criminal offenses in state and federal courts. She also represents contractors and individuals facing administrative sanctions, including revocation of security clearances and debarment from federal contracts. Ms. McAdoo Gordon graduated cum laude from the Georgetown University Law Center in 1996. She is licensed to practice law in Maryland, Virginia, the District of Columbia, and numerous federal trial and appellate courts, including the U.S. Supreme Court.