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Reading the Plea Leaves

Reading the Plea Leaves

October 25, 2023

Reading the Plea Leaves

By: James Trusty

Are guilty pleas in Fulton County confirming the righteousness of Fani Willis’ RICO prosecution or do they reflect an inherent frailty of the case, even in a venue where jurors largely can be expected to instinctively support a prosecution of high-profile Republicans? A close look at the recent plea agreements suggests that prosecutorial victory laps are premature.
While the indictment itself has joined the ranks of other historic charges against President Trump, there have been several shaky moments accompanying the Georgia case: the mind-numbing interview of the grand jury foreperson on television, a sheriff holding a press conference to confirm that he will get a mugshot of the former President to the media, and a straight-faced Fani Willis asserting that all 19 defendants will be tried together, an impracticable nightmare proposal based either on shortsightedness or worse. Finally, when the indictment was about to come out, the world got a free preview through the clerk’s office, which then scrambled to provide contradictory (and likely dishonest) explanations for the “glitch.”

Against that backdrop of questionable professionalism, it is no surprise that the prosecutors would loudly celebrate any guilty pleas obtained this fall. Scott Hall and Sidney Powell pleaded guilty to misdemeanors, Jenna Ellis to an aiding-and-abetting (watered down) felony, and Kenneth Chesebro took a felony plea. All of the pleas have a couple of common denominators – promises of no jail, dismissal of the RICO charge, making themselves available to testify at the co-defendants’ trial, and apologies to “the people of Georgia.” When it comes to Powell and Chesebro, the guilty pleas took place on the eve of trial, suggesting that one side or the other “blinked” at the oncoming battle—and promises of no jail tend to establish who was most interested in avoiding trial.
Each of these common denominators, however, brings room for genuine, apolitical criticism. If false election statements established such a devastating moment in history, why would Sidney Powell, near or at the top of the culpability pyramid for unleashing a “Kraken” of accusations, get a promise of no incarceration? In the federal system, the rule for RICO charges has always been that if a prosecutor charges it, he or she must insist on it as part of any plea agreement. The reason for that policy is not some mindless statistically-based adherence, but to recognize that RICO is a powerful tool for prosecutors, reflecting a desire to shut down organized and damaging criminality, so it should never be used lightly. Four pleas into the Georgia case, and every defendant has been allowed to walk on the lead charge, RICO.

These agreements are almost all being characterized as “cooperator agreements,” but it is highly unlikely that the District Attorney’s Office has sat down and proffered these defendants to assess their testimony’s value. This is particularly true when Chesebro and Powell pleaded guilty just hours before the onset of trial. In the absence of serious vetting, those defendants could come into the codefendant trial(s) and simply announce, “they’re all innocent” without consequence. So deeming these defendants as cooperators is nothing more than additional cover for a decision to exclude jail and RICO from the agreements.

Of all of the commonalities, the apology requirement might be the most transparent. This ain’t Teen Court. We’re not talking about juveniles or particularly young men and women in need of a character infusion. Even Ellis, the junior member of the legal team claiming election fraud in Georgia, is a 38-year-old lawyer. Maybe her tearful comments at yesterday’s guilty plea truly reflect remorse and a feeling of being rooked by more senior attorneys, so perhaps this public apology was coming either way. But requiring middle-aged defendants to publicly apologize rings like a political exercise – a prosecutor who wants the political benefit of these tv-ready apologies to negate the concerns of those who question the targeting of Donald Trump by a prosecutor who announced target first, evidence second.

Whittling down the number of defendants in a case always has some value to a prosecutor, and indeed, the recent guilty pleas successfully prevented the remaining defendants from getting a free preview of a Chesebro/Powell trial last week. But a close look at the nature of these plea agreements suggests that politics and public relations may still be a powerful component of Georgia justice.

James Trusty

James Trusty

After 27 years as a prosecutor, James (“Jim”) Trusty brings to Ifrah Law extensive experience in complex, multi-district white collar litigation, especially in matters involving RICO, The Computer Fraud and Abuse Act, and The Money Laundering Control Act of 1986.

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