Dear Reader,

All this “flipping” down in Fulton County isn’t quite what it seems. 

Over the past two weeks, District Attorney Fani Willis has reached plea deals with four of the 19 defendants in her sprawling indictment of Donald Trump and others for their effort to steal the 2020 election. On the surface, these guilty pleas look like good news for the DA, tangible signs of progress and validation of the case itself. Worse yet for Trump, all the pled-out defendants have agreed to testify. Walls are closing in, right?

Maybe not. There’s still a lot we don’t know – standard disclaimer, especially relevant here – but when we dig into the available facts, there’s reason to question whether the plea deals (1) are just and serious outcomes, and (2) actually advance the DA’s case against Trump. As you can probably sense, I’m skeptical on both of those counts.

Let’s start with the good news for Willis. In any mega-indictment, the prosecutor needs to thin the herd. On an atmospheric level, it’s nice for the prosecutor to get a few quick convictions under her belt. And as a practical matter, it’s a nightmare to get through the discovery process, pretrial motions, and trial with 19 defendants. So if the DA’s staff went out for a celebratory beer after they landed the early pleas, I won’t object. Cheers.   

But now let’s dig in a bit. What exactly has the DA achieved here? First, and inarguably: the plea deals struck by the DA thus far have been jaw-droppingly lenient. When Willis first unveiled her case – after years of suggestive media appearances, political self-promotion, and fundraising around the ongoing investigation – she hailed the indictment as no less than a vindication of democracy itself. The centerpiece of the case was a purportedly devastating racketeering charge (which carries a five-year mandatory prison sentence) tying all 19 defendants into one massive, Trump-led, mob-like criminal organization whose purpose was to steal the 2020 election. Big stuff. Allegedly. 

So far, four defendants have pled guilty. None of them have pled guilty to RICO. Zero. None of them have admitted that the much-hyped racketeering enterprise existed, or that they were part of it. Two have pled to low-level felonies (which, under a Georgia law, will eventually be erased from their records) while two others have pled to misdemeanors. Nobody will serve a day behind bars; it’s all probation and small-time fines.

I can hear your response: But prosecutors often give lenient plea agreements to obtain valuable insider testimony from cooperators. That’s absolutely correct. (I can tell you’re a regular reader of this column; your impressive knowledge shines through.) Indeed, as a prosecutor. I gave some very bad folks some very sweet deals to obtain some very valuable testimony. I’m no pearl-clutcher here. It’s a business transaction; I get it, I’ve done it, and it works.

But it only works if it’s done right. And, by all appearances, Willis isn’t doing it right. To put it another way: the DA has structured these deals to give away the cases for bargain-basement prices, without ensuring that she secures useful (and usable) testimony. 

Let’s illustrate the point with Sidney Powell, the former federal prosecutor and Trump advisor who endlessly spewed nonsense election fraud conspiracy theories involving Hugo Chavez, George Soros, and voting machines that flipped votes from Trump to Biden. The DA originally charged Powell with the big racketeering charge, plus six other felonies for improperly accessing voting machines in Coffee County. But under her plea deal, Powell pled guilty only to six lowly misdemeanors relating to the Coffee County breach. The agreed-upon sentence: six years probation, $8,700 in fines and restitution, and an apology letter. (This, by the way, is silly showmanship; a defendant “apologizes” by accepting responsibility and pleading guilty, not by completing a petty, elementary school-style punishment.) 

I think we can all agree that, in a vacuum, this is a terrible, indefensible deal for the DA. But, of course, Willis’s defenders will note that there’s a catch: Powell’s deal requires her to testify, and that changes the calculus. But the problem is that Powell’s cooperation is only worth a damn if it compels her to tell the full truth. If the plea deal permits her to get away with only admitting part of the story, then it’s useless. 

Let’s illustrate the point. There are two scenarios when it comes to Powell’s potential testimony: 

Good Sidney Powell: Yes, I was part of the effort to breach the voting machines in Coffee County. I pled guilty to six misdemeanors for doing that. And I admit that my claims of 2020 election fraud were untrue. I knew it, and we all knew it. Those election fraud lies were part of a larger effort that Trump, Rudy, and I (and others) cooked up to try to steal the election.

Bad Sidney Powell: Yes, I was part of the effort to breach the voting machines in Coffee County. I pled guilty to six misdemeanors for doing that. But I stand by my claims that the 2020 election was stolen from Donald Trump. I believed it at the time, and I believe it now, I advised Trump accordingly, and he was right to listen to me.

When the Powell plea deal was first announced, we didn’t know which version we’d get. Good Sidney would be a game-changer for prosecutors, a devastating witness against Trump. Bad Sidney would be useless, or worse. If anything, her testimony would support Trump’s defense that he relied in good faith on his advisors and believed he was acting within his rights to contest a disputed election based on evidence of fraud.

Now we know which Powell has emerged: it’s the Bad one. Since taking the deal, Powell has continued to post false claims about 2020 election fraud on her Twitter / X feed, and she has publicly claimed she was “extorted” by the DA. She’s not on board. She’s not a viable cooperator in any meaningful sense of the term. She grabbed the cheese (the lenient plea deal) right out from the mousetrap, and it was never even capable of snapping shut on her in the first place. Powell got all the benefit (a soft plea deal) without the downside. Powell played the DA. 

So what should Willis have done differently? The DA botched the deal when she allowed Powell to plead to some of her conduct (the Coffee County breach) but not the overall effort to steal the election (the RICO charge). That left the door open for Powell to have it both ways: Yeah, sure, I tapped into the balloting machines, but there was never any broad conspiracy to steal the election, and everything else I did was legit. 

This is why the federal, all-or-nothing model for cooperation is more effective. An aspiring cooperator must plead guilty to every crime he has committed; the more serious the crime, the more essential that he accepts responsibility for it. So, here, Powell should have been made to plead to the RICO charge, plus the others. That would’ve left her no wiggle room to deny responsibility for the larger effort to steal the election through fraud. Maybe Powell would have agreed to such a deal, or maybe she’d have rejected it and walked away. In that case, fine: take her to trial. That’s preferable to letting her off the hook with a spate of probation misdemeanors and no realistic prospect of obtaining helpful testimony. 

The circumstances might differ for Kenneth Chesebro, or Jenna Ellis, both of whom also received soft, no-prison plea deals in exchange for an agreement to testify. We don’t fully know. Maybe one or more of them will come clean and land a blow directly against Trump. But those same structural weaknesses that infected the Powell deal apply to the others as well. They’ve all pled guilty to scraps, with meager punishments attached, and none of them have pled to RICO. Any one of these other defendants can follow Powell’s path, without repercussions. The DA is left mostly to rely on their good faith, and that’s not a great place to be as a prosecutor. 

We need to be careful when we say that somebody has “flipped.” Merely pleading guilty to reduced charges, with an agreement to testify if called, doesn’t do the trick. Halfway-cooperation simply doesn’t work. Willis has scored a temporary PR victory of sorts here, but it’s doubtful these deals will play well in the long run.

Stay Informed,

Elie

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