Can Trump Still Dodge Accountability For Trying to Overturn the Election?

The guilty pleas by Sidney Powell and his other attorneys may be vital but not enough

Stylized booking photos of—from L-R—Donald Trump, Jenna Ellis, Sidney Powell, Kenneth Chesebro (credit: Fulton County Sheriff’s Office)

Three of Donald Trump’s attorneys—Kenneth Chesebro, Sidney Powell, and Jenna Ellis—have now pled guilty to criminal acts in Georgia to help Trump retain the presidency despite losing the election to Joe Biden. Chesebro, Powell, and Ellis, who worked for Trump after the 2020 election, admitted to various forms of illegal activities to forestall Biden’s presidency. As part of their plea arrangements, they are expected to testify against Donald Trump—and other alleged co-conspirators John Eastman, Mark Meadows, and Rudy Giuliani.

This means three key members of Trump’s “elite strike force team” of attorneys, to use Ellis’s description from 2020, have now admitted to participating in a scheme intended to help keep Donald Trump in office despite losing the presidential election. But do their plea deals mean that now prosecutors will be able to nail Trump himself and his other top aides who enabled him?

It is unclear.

What Happened in Georgia?

In August of this year, Chesebro, Powell, and Ellis were indicted—along with Donald Trump and 15 others—by a grand jury in Fulton County, Georgia for their participation in a “criminal enterprise” to overturn the election.

Chesebro has admitted that during an eight-day period in December 2020, he conspired with co-defendants—including Trump, Giuliani, and Eastman—to file a false certificate naming a new slate of electors that they claimed was legitimate, while those who cast their votes for Joe Biden were not. Ellis was also involved in what has come to be known as the fake electors scheme, and her guilty plea acknowledges she made false statements to the Georgia state legislature in an effort to get the legislature to appoint an alternate set of electors. Powell, who worked on a different strand within Trump’s overarching project to steal the election, has admitted to conspiring with a local election official in Coffee County to illegally access the voting systems as part of the Trump team’s efforts to find “evidence” of voter fraud.

As part of their plea arrangements, Chesebro, Powell, and Ellis provided testimony—and are expected to provide more testimony—which will have wider implications for holding Trump and his closest comrades who sought to overturn the 2020 presidential election accountable.

Beyond Georgia

According to the Georgia indictment, Chesebro allegedly sent multiple emails about his fake electors scheme not only to a group of potential fake electors in Georgia but also to potential electors in Wisconsin, Arizona, and Nevada. He is also believed to have coordinated this plan directly with Giuliani and Eastman. This means Chesebro’s testimony, assuming it confirms the facts alleged in the Georgia indictment, is relevant not only to the existing indictment in Georgia but also the broader Jan. 6 case brought by Special Counsel Jack Smith at the federal level. Chesebro’s future testimony could also supply authorities in those other states with evidence to bring separate charges against them.

Chesebro’s future testimony might be very valuable to prosecutors—or it might not. After all, he plead guilty to a felony yet isn’t expected to serve any jail time. What’s more, Georgia law maintains that if Chesebro successfully completes his probation and cooperation with prosecutors, his entire offense will be wiped from his criminal record as if he had never committed a crime.

But Chesebro’s lawyer has played down the significance of Chesebro’s testimony, arguing that his client would’ve never gotten off without jail time if he were really trying to “overthrow democracy.” The real reason for the lenient offer, his lawyer contends, is that the prosecutor wasn’t prepared to try the case (which had been scheduled to start last week). Since the exact details of what Chesebro proffered to the prosecution isn’t a matter of public record, we’ll have to wait to see if Chesebro’s relative slap on the wrist indicates that the Georgia prosecutors found his testimony valuable.

Powell also received a lenient deal from the prosecutor. What remains to be seen is whether her plea agreement will require her to testify beyond the six misdemeanor offenses involving the breach of election systems. For example, Powell attended a White House meeting with Trump, Giuliani, and former National Security Advisor Michael Flynn on Dec. 18, 2020.  At that meeting, Trump was not only advised to declare martial law and order the military to seize voting machines but also name Powell as a special counsel to investigate the supposed voter fraud. Thus, unlike Chesebro, Powell is known to have been in direct contact with Trump—and specifically to discuss post-election strategies for staying in office. Even though Trump ultimately did not take those recommended steps, Powell’s testimony about that meeting could go a long way toward directly establishing Trump’s state of mind that he knew he had lost the election and was trying to orchestrate a steal. Indeed, Powell was close enough to Trump that he named her a part of his “truly great” legal team to challenge the election (though today he is denying that she ever was his lawyer). All in all, it seems unlikely that Georgia prosecutors would have offered Powell a lenient deal if they did not know what she would testify to regarding this particular meeting and her ongoing interactions with Trump.

Ellis may also have more to say. Her guilty plea requires her to serve five years probation and to testify truthfully. She is alleged, as part of the RICO conspiracy (the central conspiracy charge of the Georgia indictment), to have been deeply involved in soliciting fake electors in Pennsylvania and trying to influence the state legislature there—and she carried out similar efforts in Michigan and Arizona. Her testimony offering details about these schemes would therefore be relevant for both federal  prosecutors and those other states.

Obstacles to Justice

Although it’s likely Chesebro, Powell, and Ellis can offer prosecutors testimony that would be valuable in holding responsible Trump and his top advisors for conniving to overturn the election, prosecutors face at least two significant obstacles.

First, they will need to convince juries that Chesebro, Powell, and Ellis are credible witnesses who should be believed. All three are, at this point, confessed criminals. Chesebro and Ellis have admitted to a plan to lie about the elections in public and in the courts. Powell, in defending herself against a defamation lawsuit by Dominion Voting Systems (the manufacturer of election machines), has sworn in court filings that nothing she said was a factual statement—that it was all just opinion. All three will be subject to cross-examination along the lines of, “You’re just saying this to secure a sweetheart plea deal, aren’t you?” None of this is insurmountable—prosecutors make cases with tainted witnesses all the time, some of whom with credibility issues far worse than Chesebro, Powell, and Ellis. Still, the fact that their testimony is part of an arrangement with prosecutors cannot simply be waved away.

Perhaps an even greater worry is that Chesebro, Powell, and Ellis will couch their testimony with caveats and qualifications in an effort to thread the needle as much as possible, ideally gaining the benefit of their plea without provoking repercussions for offering testimony damaging to Donald Trump. This is a more subtle, and more potentially worrisome, concern from a prosecutor’s perspective.

There are also other barriers to getting the most out of their testimonies. To take the most obvious example, both Chesebro and Powell are almost certainly unindicted co-conspirators numbers 5 and 3, respectively, in Trump’s federal indictment by the special counsel. This means both face possible federal criminal charges for their conduct (since Georgia is a separate sovereign, the prosecution there does not prevent a federal case; double jeopardy does not apply) and may even face other state criminal charges. And this, in turn, means both could assert a Fifth Amendment privilege against compelled testimony about any actions outside the four corners of their plea colloquies. When defendants plead guilty, they waive any claim of privilege against testifying about the crimes in question but not necessarily other crimes. Even though Ellis is not one of the unnamed co-conspirators in the federal indictment, she might still face federal charges or charges in other states. So if any of these attorneys were called to testify in the special counsel’s case, they might reasonably refuse unless and until they reach a plea deal for federal charges or, at a minimum, immunity for their testimony—which would mean a promise not to use their words against them in any later prosecution.

Again, this isn’t insurmountable—it’s a common barrier in criminal cases. But it’s still a challenge prosecutors will have to overcome.

In the end, the possibility exists that none of them will lose their law license, much less spend time in jail, despite being instrumental in a plot to overturn an election. That surely is a disappointment for those who rightly want to see lawyers undermining democracy deterred from repeating their behavior. But this is just the messy reality in criminal law, where making a case requires the testimony of cooperating witnesses.

Where Do We Go From Here?

Given that Chesebro, Powell, and Ellis were deeply enmeshed with John Eastman, then-Chief of Staff Mark Meadows (who has also received immunity from Special Counsel Smith), and Giuliani, and likely had connections to other lawyers, including Jeffrey Clark, the high-ranking Justice Department official who pressured the DOJ to help Trump steal the election, there are good grounds for optimism regarding their future testimonies. This trio is therefore best seen as a steppingstone to ensuring accountability at higher levels. Evidence against Eastman, Meadows, and Giuliani will especially be of interest to Georgia prosecutors since those three were the closest to Trump. And their testimony, in turn, will be of particular value in building a criminal case against Trump, much as the testimony of a Mafia Don’s lieutenants is more valuable to prosecutors than that of the foot soldiers.

Chesebro, Ellis, and Powell were foot soldiers—albeit significant ones. What happens next to those higher up in the hierarchy is critical. Only time will tell if the bargain Georgia prosecutors have made will pay off for holding the most powerful man in America accountable to the rule of law. For now, the jury is still out.

© The UnPopulist, 2023