Fani Cut the Cheese (a Deal)

Here’s why that is very bad news for Trumpland

Fani Willis (AP Photo/John Bazemore), Ken Chesebro (Fulton County Jail)

Okay, I admit, I’ve been waiting to use that headline. I hope it starts your week off with a smile. But if it didn’t, perhaps this breakdown today will. Specifically, Kenneth “The Cheese” Chesebro’s guilty plea on Friday—a felony of illegally conspiring to overturn the election results in Georgia by knowingly filing a false election document—places Trump and his top lieutenants in far greater legal peril than before.

There are at least five reasons for this.

First, it goes to establishing a key claim, one that is central to Fani Willis’s RICO charge. Specifically, the person considered the key architect to the fake elector scheme just admitted that it was illegal. That moves the RICO ball way down the field.

Second, with his plea Chesebro has switched from being an attorney who might have provided a legal shield for Trump and his co-defendants to a devastating witness for the prosecution with a lot of insider information.

Third, Chesebro’s plea comes with receipts. He is turning over a trove of emails, texts and other communications to prosecutors. He also recorded a video proffer to lock in his testimony. Willis is now armed with much more than before, and so is Jack Smith.

Fourth, Trump’s “advice of counsel” defense is now massively complicated. It’s hard to rely upon “advice of counsel” when your counsel has admitted that the advice was 1) not even fully of a legal nature, and 2) likely to go nowhere in court.

Five, the plea puts Willis in a much better place with the case because she doesn’t have to show her hand, while adding enormous pressure on the remaining defendants to seek plea deals. It also makes possible a full trial of the other defendants in 2024.

Today’s piece breaks these all down in greater detail.

RICO: All it takes is two predicate acts

It’s helpful to put Chesebro’s plea in the context of the larger case Fani Willis is pursuing against the remaining defendants, including Trump, Giuliani, Eastman, Clark and a dozen others. Refresher: In an earlier piece, I laid out what it takes to prove a criminal RICO case in Georgia:

The gist of RICO in Georgia comes down to proving that there were at least two so-called “predicate crimes” that were committed as a part of an enterprise engaging in a “pattern of racketeering activity.”

…

The “predicate crimes” for racketeering include what you might expect the mob to do: murder, witness intimidation, drug offenses, burglary, etc. But they also include more “white collar” crimes like computer trespass, obstruction of justice, and false documents. This winds up mattering a lot in this case. If the jury finds that the defendants committed at least two of these crimes, that will satisfy this part of the statute.

When I wrote about the kinds of “predicate crimes” that the prosecution would likely focus on, I listed three of them as examples: creating a false document (like a fake elector certification), knowingly making false statements to the Georgia legislature like Giuliani did, and breaking into voting systems as a kind of “computer trespass.”

And look what’s happened already: Three defendants have pled out, with two (Scott Hall and Sidney Powell) confirming the crime of the systems breach in Coffee County, and one (Kenneth Chesebro) confirming a conspiracy to submit a false election document.

Addled as he is, Trump can still count to two, and Fani Willis now appears to have two predicate acts under her belt with star witnesses already recording their confessions. She will continue to add to that list as more defendants plead out. 

From lawyer to witness

Trump already understands how bad it is when your lawyer turns on you and names you as a criminal. Michael Cohen got the ball rolling on Trump’s false financial statements, and now both Sidney Powell and Kenneth Chesebro, once lawyer insiders within Trump’s circle, are his worst nightmare.

That’s because Chesebro was the one who ran with the fake elector scheme in the first place, what federal Judge David Carter in the John Eastman privilege battle aptly called, a “coup in search of a legal theory.”

As the Washington Post notes, the indictment states that Chesebro was central not only to convening the fake electors but to the “strategy for disrupting and delaying the joint session of Congress on Jan. 6, 2021.” We talk a lot about the infamous Eastman memo, but the genesis of that memo in 2020 was Chesebro. (One eagle-eyed legal analyst pointed out that this scheme built off of what Eastman had put before the Florida legislature during the Bush/Gore election in 2000. It never moved forward back then because the Supreme Court decided in Bush’s favor, but the idea to hijack state processes to appoint electors chosen not by the people but by the legislators has been going on for a long time.)

As the chief architect of the elector plan in 2020, Chesebro had to explain it to everyone else on the team, including Trump, Eastman and Giuliani. If you’re aiming to establish a criminal conspiracy, it’s critical to have someone on the inside explain to the jury what the agreement and steps taken in furtherance of the illegal plan precisely were. Fani Willis (and likely, Jack Smith) now have Chesebro to do that.

But, but, but wait! Isn’t the fact that Chesebro got off with no jail time damning for the prosecution? If what he did was so bad, why did he just get probation instead of years in prison? Same question for Sidney Powell, who also got a slap on the wrist. Doesn’t this presents an issue down the road when their credibility inevitably gets attacked? As MSNBC columnist Glenn Kirschner put it,

You can see how cross-examination of Powell might unfold: “Ms. Powell, you were facing the rest of your life in prison, but all you had to do was falsely implicate Donald Trump to receive an obscenely lenient plea deal. Ms. Powell, you would have said anything DA Willis wanted you to say to avoid jail, isn’t that right?” Prosecutors will need lots of hard corroboration — emails, texts, notes, recordings — for Powell and Chesebro’s testimony.

That’s why the next part matters a lot.

The receipts are plentiful and damning

Chesebro may have a very intelligent legal mind, coming up with a Hail Mary plan the way he did, but he was never very wise about it. In pressing for his fake elector strategy, he wrote down some very telling things in memos and communications to others, likely assuming these would never see the light of day. Welp.

In December 2020, Chesebro admitted in emails that as to the “odds the court would grant effective relief before Jan. 6, I’d say only 1 percent.” Let me emphasize this: One. Percent. So, hey everyone, we’re going with the one percent chance, at the expense of our entire democracy!

Chesebro also said court filings could yield a “political payoff” to support an argument that “there should at least be extended debate in Congress about election irregularities in each state.” He added that “the public should come away from this believing that the election in Wisconsin was likely rigged, and stolen by Biden and Harris, who were not legitimately elected.”

It should be noted that this statement is even more outrageous given that, according to his own lawyer, Chesebro never even personally believed that the election was stolen, as the Big Lie claimed. He just wanted the public to come away with that sense that it was.

And in another memo, Chesebro acknowledged that the fake elector scheme was “a bold, controversial strategy” that the Supreme Court was “likely” to reject. Yet to him, the plan was worth doing even if the Supreme Court ruled against it. The benefits were two-fold: it would get everyone in America thinking about claims of voter fraud and “buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”

In short, Chesebro knew the plan was likely illegal and would get shot down by the Supreme Court. But he pushed for it anyway because it would confuse the American public and buy the campaign time. And all this is written down, so it will be very hard for Trump’s defense counsel to discredit any of his testimony that aligns with what he wrote.

This also damages Trump’s “advice of counsel” defense

While some legal observers believe that there is no “advice of counsel” available as an affirmative defense for Trump in Georgia, it appears he intends to raise it anyway, and certainly at least in his federal case. We’ll find out soon when the papers and motions from the parties are due in a few weeks.

In any event, Chesebro’s plea and testimony will seriously undercut this defense. It’s pretty clear from the memos and communications that Chesebro was not offering only legal advice but also political advice to the campaign. He admitted that the filings of legal cases, for example, were a mere pretext for causing confusion around election integrity and to buy time.

Nor is it reasonable to rely upon the “one percent” chance guy when, as Norm Eisen and Joshua Kolb noted in their piece in Salon, “White House Counsel Pat Cipollone, his deputy Pat Philbin, their senior colleague Eric Herschmann, the acting attorney general and his deputies, and Trump campaign lawyers had all rejected the theory.” Add to that the fact that even the “one percent” guy has admitted the plan was bogus and part of an illegal conspiracy to overturn the election, and Trump will have real problems maintaining any kind of “advice of counsel” defense.

Fani Willis is a big winner

As I wrote about earlier, the generous plea deals indicate to most legal observers that the value of the information provided by Chesebro and Powell is quite high. She is probably feeling quite good about where she’s already gotten the case, and her experience running complex RICO cases, specifically by squeezing the folks at the bottom until they rat out those above them, is clear. The plan so far is working like a charm.

Further, Willis was likely under considerable pressure to get Powell and Chesebro to crack before the trial moved forward. She didn’t want to have to reveal her prosecution strategy to the other defendants by trying the case before the public and letting Trump’s lawyers take notes on all her evidence. 

Other defendants watching this unfold realize there are fewer chairs for them to sit down in when the music stops, and so they will want out of the game, too. We can expect a lot of pressure on Jenna Ellis, whose legal bills are not being paid by the Trump Campaign, or Jeffrey Clark to plead out next. Clark in particular has a lot of exposure because of the guilty plea and cooperation of Scott Hall, a bail bondsman who was involved in both the Coffee County election data breach and the awful pressure campaign on election worker Ruby Freeman, and was for some reason in communication with Clark for an hour by phone about matters. (Hall will now provide that reason to the jury, as well as what was discussed.)

And lastly, look at the trial calendar now in Georgia. With the two defendants who were set to begin trial today now under plea deals, the calendar is suddenly wide open. This means it’s possible that Judge McAfee can now set a 2024 trial date. He would have to work around existing federal trial dates, but a summer trial date isn’t out of the question.

And that trial may not go as long as several months, as initially indicated, especially if more defendants plead out. The narrower the case gets, the more streamlined it will become. And the more guilty pleas there are, the harder it will be for Trump to prove that he alone is innocent.