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Jenna Ellis Deals A Blow To Trump
The one-time lawyer for the Trump Campaign sang for prosecutors, and Lordy there’s a tape.
The release of a video tape of Jenna Ellis came as something of a shock. Ellis is a former member of the Trump Campaign’s “Elite Strike Force” legal team. But that strike force is now mostly witnesses for the state, and Ellis earlier pleaded guilty in exchange for her cooperation in the Georgia RICO criminal case.
That plea deal included a “proffer” to prosecutors, where Ellis would tell them what she knows in the hope they’d go easy on her. In Ellis’s case, her statements were tape recorded so she couldn’t easily change her testimony later. Now, that tape has gone public.
Ellis’s taped interview was notable for this: She said a top Trump aide, Dan Scavino, had told her on December 19, 2020, more than six weeks after the election, that “The boss is not going to leave under any circumstances. We are just going to stay in power.”
That goes straight to the heart of the case for one reason: Donald Trump’s intent. After he lost the election, did Trump in fact plan to remain, no matter what the courts or his lawyers or even Mike Pence did? It sure sounds like it. And that could be very damaging to his defense.
The tape also raises many immediate questions: How did it leak? Was Ellis telling the truth, and is there corroboration? Is the statement even admissible? How does it match up with the timeline of events?
Let’s dive into these in a quick analysis of this development in the case.
How did the media get these tapes?
As soon as the tape hit the internet from ABC News, my first thought was, “Who the hell leaked it?” Surely not the District Attorney or anyone in her office. That would not only be unethical and unprofessional, it would probably help the defense. This is because witnesses (such as Dan Scavino) might now have time to figure out how to deny or undermine the testimony. Not great.
In my mind, the leak was far more likely from one of the defense attorneys. As Lawfare’s expert court watcher down in Georgia, Anne Bower, noted,
(1) The proffer videos were produced in discovery to all remaining defendants;
(2) There’s currently no protective order in place that would prohibit distribution.
I could easily see Giuliani’s or Trump’s lawyers handing this to the press, knowing they’d run with it. It would put every other witness who is still loyal to Trump on notice of what Ellis snitched about. That could be helpful later.
The media has also obtained tapes of three other defendants who pleaded guilty: kraken conspiracy lawyer Sidney Powell; Kenneth “The Cheese” Chesebro, the architect of the fake elector scheme; and Scott Hall, a bail bondsman who participated in the conspiracy.
Was Ellis telling the truth, and is there corroboration?
As an initial matter, Ellis has a lot to lose from not telling the truth or refusing to cooperate, two things required by her plea deal. If she violates its terms, the probation on her sentence ends, and she goes to Georgia state prison for five years. So I begin from the assumption that Ellis is telling the truth as she remembers it.
It’s also important to note that there is some corroboration already for this. As Maggie Haberman from the New York Times wrote in her book “Confidence Man: The Making of Donald Trump and the Breaking of America,” Donald Trump told an aide that he was “just not going to leave” the White House. “We’re never leaving,” he vowed to another aide, according to the book. “How can you leave when you won an election?”
According to the book, Trump also reportedly said to Republican National Chair Ronna McDaniel, “Why should I leave if they stole it from me?”
Following the release of the Ellis proffer tape, another White House aide, Alyssa Farah Griffin, has already come out with a public statement in support of Ellis’s recollection. She posted on the X platform, “The then-White House Chief of Staff said nearly the identical thing to me on Dec 3rd of 2020. I gave my resignation the next day.”
Then there is the possible corroboration by Dan Scavino himself. Some noted that Scavino himself is not named in the conspiracy charges. But few remember, as Lisa Rubin of MSNBC helpfully pointed out, that Scavino already provided grand jury testimony in Washington, D.C. We don’t know what he may have told prosecutors or the grand jury, but like Ellis, Scavino would have little incentive to lie and a great deal to risk if he did.
A clarifying point here: The statement about Trump never leaving gets to the heart of the tricky “intent” question that trips so many people up. There is a difference between intending to obtain justice (which by itself is not illegal) and doing criminal things to obtain that justice (which is illegal).
Trump could have sincerely believed that he won the election, just like you can sincerely believe that the bank owes you money, even when it doesn’t. But that belief didn’t give Trump the right to refuse to leave office when the courts ruled against him—just like you wouldn’t have the right to hold up the bank to get the money you sincerely believe you’re owed.
Respecting the law and the process is part of what is required in our system, even if you’re the president.
Is the statement even admissible?
People often hear something that sure sounds like hearsay and assume there’s no way that’s ever coming into evidence. In this case, it’s even more removed: Ellis is talking about something said by someone else who is not a party to the proceedings about what “the boss” planned to do. That’s pretty far removed, and so it’s not coming in, right?
There are two ways it still might, and probably will.
First, let’s look more closely at the definition of hearsay. Hearsay has two parts to it. It is
1) an out-of-court statement (this is the part people get), that
2) is offered to prove the truth of the thing asserted.
That last part is admittedly harder to grasp. But you can see it in action here. Let’s look at Scavino’s out of court statement, according to the ABC News report:
And he said to me, in a kind of excited tone, “Well, we don’t care, and we’re not going to leave,” Ellis said of the alleged Dec. 19 conversation with Scavino. And I said, “What do you mean?” And he said, “Well, the boss,” meaning President Trump — and everyone understood “the boss,” that’s what we all called him — he said, “The boss is not going to leave under any circumstances. We are just going to stay in power.”
This statement is not being offered to prove the truth of Scavino’s assertion—i.e., that Trump was in fact never going to leave and was going to stay in power. Rather, as noted by legal observer Harry Litman, Senior Legal Affairs correspondent for the LA Times, Scavino’s statement was being offered to show Trump’s intent. That means Scavino’s statement is not even hearsay to begin with, because it’s not offered to prove that Trump in fact was never going to leave.
And for you real legal nerds out there, at least in the Federal Rules of Evidence there’s an express exception to the hearsay rule (Rule 801) carved out. As NYU law professor Ryan Goodman of Just Security argues, this seems to fit this circumstance. Here’s the exception:
A statement that meets the following conditions is not hearsay: ...The statement is offered against an opposing party and ... was made by the party’s coconspirator during and in furtherance of the conspiracy.
Because Ellis was a named defendant and coconspirator in the case, if she testifies live and in court, what Scavino told her about Trump could come into evidence under this exception, assuming Georgia state law follows the same rules around hearsay exceptions.
A disturbing timeline
One final thought. I find the timing of the statement by Scavino to Ellis to be quite telling. On December 18, 2020, a summit of sorts occurred at the White House, where “Team Crazy” (including Sidney Powell and the likes of Gen. Michael Flynn) tried to convince Trump to seize voting machines and even declare martial law. They were challenged, in what devolved into a late night screaming match, by White House lawyers including Pat Cippolone and Eric Herschmann. We are lucky “Team Normal” won out.
But a few hours later, in the wee hours before dawn, Trump tweeted out an infamous call to arms to his MAGA followers. He told them about a “Big protest” to be held in D.C. on January 6. “Be there, will be wild!” Trump promised.
That was the early morning of December 19—the same day Scavino excitedly told Ellis that the “boss” was not going to leave under any circumstances.