Opinion | Trump’s Lawyers Are Going Down. Is He?

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Opinion
David French

Trump’s Lawyers Are Going Down. Is

He?
Oct. 25, 2023

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By David French
Opinion Columnist

On Tuesday morning, Jenna Ellis became the third Donald Trump-

llied lawyer to plead guilty in Fulton County, Ga., to state criminal
charges related to his efforts to overturn the results of the 2020
presidential election in Georgia. She joins Sidney Powell and
Kenneth Chesebro in similar pleas, with each of them receiving
probation and paying a small fine and each of them cooperating
with the prosecution in its remaining cases against Trump and his
numerous co-defendants.

The Ellis, Powell and Chesebro guilty pleas represent an advance

for both the state election prosecution in Georgia and the federal
election prosecution in Washington. While their guilty pleas came
in the Georgia case (they’re not charged in the federal prosecution,
though Powell and Chesebro have been identified as unindicted co-
onspirators in that case), the information they disclose could be
highly relevant to Jack Smith, the special counsel investigating
Trump.

Perhaps as important or even more important, the three attorneys’

admissions may prove culturally and politically helpful to those of
us who are attempting to break the fever of conspiracy theories
that surround the 2020 election and continue to empower Trump.
At the same time, however, it’s far too soon to tell whether the
prosecution has made real progress on Trump himself. The
ultimate importance of the plea deals depends on the nature of the
testimony from the lawyers, and we don’t yet know what they have
said — or will say.

To understand the potential significance of these plea agreements,

it’s necessary to understand the importance of Trump’s legal team
to his criminal defense. As I’ve explained in various pieces and as
the former federal prosecutor Ken White explained to me when I
guest-hosted Ezra Klein’s podcast , proof of criminal intent is
indispensable to the criminal cases against Trump, both in Georgia
and in the federal election case. While the specific intent varies
depending on the charge, each key claim requires proof of
conscious wrongdoing, such as an intent to lie or the intent to have
false votes cast .

One potential element of Trump’s intent defense in the federal case

is that he was merely following the advice of lawyers. In other
words, how could he possess criminal intent when he simply did
what his lawyers told him to do? He’s not the one who is expected
to know election laws. They are.

According to court precedent that governs the federal case, a

defendant can use advice of counsel as a defense against claims of
criminal intent if he can show that he “made full disclosure of all
material facts to his attorney” before he received the advice and
that “he relied in good faith on the counsel’s advice that his course
of conduct was legal.”

There is a price, though, for presenting an advice-of-counsel

defense. The defendant waives attorney-client privilege , opening
up his oral and written communications with his lawyers to
scrutiny by a judge and a jury. There is no question that a swarm of
MAGA lawyers surrounded Trump at each step of the process, Editors’ Picks

much as a cloud of dirt surrounds the character Pigpen in the

Britney Spears
“Peanuts” cartoons, but if the lawyers have admitted to engaging Doesn’t Need to
Narrate Her Memoir
in criminal conduct, then that weakens his legal defense. This was for It to Sing
no normal legal team, and their conduct was far outside the bounds
of normal legal representation. Why You Should
Make Time for
Oddball Rituals
Apart from the implications of the advice-of-counsel defense, their
criminal pleas, combined with their agreements to cooperate, may
Something Wicked
grant us greater visibility into Trump’s state of mind during the This Way Paddles
effort to overturn the election. The crime-fraud exception to
attorney-client privilege prevents a criminal defendant from
shielding his communications with his lawyers when those
communications were in furtherance of a criminal scheme . If Ellis,
Powell or Chesebro can testify that the lawyers were operating at
Trump’s direction — as opposed to Trump following their advice —
then that testimony could help rebut his intent defense.

At the same time, I use words like “potential,” “if,” “may” and
“could” intentionally. We do not yet know the full story that any of
these attorneys will tell. We have only hints. Ellis said in court on
Tuesday, for example, that she “relied on others, including lawyers
with many more years of experience than I, to provide me with
true and reliable information.” Indeed, Fani Willis, the Fulton
County district attorney, has indicted two other attorneys with
many more years of experience — Rudy Giuliani and John
Eastman. If Ellis’s court statement is any indication, it’s an
ominous indicator for both men.

If you think it’s crystal clear that the guilty pleas are terrible news
for Trump — or represent that elusive “we have him now” moment
that many Trump opponents have looked for since his moral
corruption became clear — then it’s important to know that there’s
a contrary view. National Review’s Andrew McCarthy, a respected
former federal prosecutor, argued that Powell’s guilty plea , for
example, was evidence that Willis’s case was “faltering” and that
her RICO indictment “is a dud.”

“When prosecutors cut plea deals with cooperators early in the

proceedings,” McCarthy writes, “they generally want the pleading
defendants to admit guilt to the major charges in the indictment.”
Powell pleaded guilty to misdemeanor charges. Ellis and Chesebro
each pleaded to a single felony charge, but they received
punishment similar to Powell’s. McCarthy argues that Willis
allowed Powell to plead guilty to a minor infraction “because minor
infractions are all she’s got.” And in a piece published Tuesday
afternoon , McCarthy argued that the Ellis guilty plea is more of a
sign of the “absurdity” of Willis’s RICO charge than a sign that
Willis is closing in on Trump, a notion he called “wishful thinking.”

There’s another theory regarding the light sentences for the three
lawyers. When Powell and Chesebro sought speedy trials, they put
the prosecution under pressure. As Andrew Fleischman, a Georgia
defense attorney, wrote on X (formerly known as Twitter), it was
“extremely smart” to seek a quick trial. “They got the best deal,”
Fleischman said, “because their lawyers picked the best strategy.”

As a general rule, when you’re evaluating complex litigation, it is

best not to think in terms of legal breakthroughs (though
breakthroughs can certainly occur) but in terms of legal trench
warfare. Think of seizing ground from your opponent yard by yard
rather than mile by mile, and the question at each stage isn’t so
much who won and who lost but rather who advanced and who
retreated. Willis has advanced, but it’s too soon to tell how far.

The guilty pleas have a potential legal effect, certainly, but they can
have a cultural and political effect as well. When MAGA lawyers
admit to their misdeeds, it should send a message to the
Republican rank and file that the entire effort to steal the election
was built on a mountain of lies. In August a CNN poll found that a
majority of Republicans still question Joe Biden’s election victory,
and their doubts about 2020 are a cornerstone of Trump’s
continued political viability.

Again, we can’t expect any single thing to break through to

Republican voters, but just as prosecutors advance one yard at a
time, opposing candidates and concerned citizens advance their
cultural and political cases the same way. It’s a slow, painful
process of trying to wean Republicans from conspiracy theories,
and these guilty pleas are an important element in service of that
indispensable cause. They are a series of confessions from the
inner circle and not a heated external critique.

Amid this cloud of uncertainty, there is one thing we do know: With

each guilty plea, we receive further legal confirmation of a reality
that should have been plainly obvious to each of us, even in the
days and weeks immediately following the election. Trump’s effort
to overturn the election wasn’t empowered by conventional
counsel providing sound legal advice. It was a corrupt scheme
empowered by an admitted criminal cabal.

More on Trump and his legal woes

Opinion Katherine Miller

|

The Plot Trump Lost

Oct. 16, 2023

Opinion Stephen Fowler

|

In Georgia, One Republican Says, ‘We Will Do

What Is Right’
Sept. 1, 2023

Opinion Andrew Fleischman

|

What Fani Willis Got Wrong in Her Trump

Indictment
Aug. 29, 2023

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David French is an Opinion columnist. He is a veteran of Operation Iraqi Freedom and a

former constitutional litigator. His most recent book is “Divided We Fall: America’s
Secession Threat and How to Restore Our Nation.” You can follow him on Threads
( @davidfrenchjag ).

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