Kraken the Case

Mug shot of Sidney Powell, courtesy of the Fulton County Sheriff’s Office

[Update: Minutes after I published this, Kenneth Chesebro pleaded guilty to at least one felony charge in exchange for his testimony. This is very bad news for the higher ups. Also, note that the oopsie of Powell receiving six years probation (not six months) has been corrected.]

It’s a cold, rainy day in New York City, and I’m a bit under the weather. So to pick myself up, I’m mulling apples with holiday spices, making a caramelized onion quiche, and reflecting on how worried Donald Trump and his lawyers likely are that Sidney Powell has pled guilty in the Georgia state RICO case.

Powell is the first within the “inner circle” of White House conspirators, which include Donald Trump, Rudy Giuliani, Jeffrey Clark, and Kenneth Chesebro, to flip and agree to testify against her co-defendants, including the big guy himself. That is a considerable victory for prosecutors in Georgia.

To understand why that is, we need to wade through the mucky madness that is Sidney Powell. We’ll do that first, and then I’ll answer some common questions about the plea deal, including what it means that it’s so lenient on its face, with no jail time for Powell; what Powell likely has offered up to prosecutors; and how this changes the game considerably for the other defendants, including Trump.

Sidney Powell really is as crazy as she seems

You probably remember Sidney Powell best from a bonkers presser that she gave with Rudy Giuliani, while some kind of hair dye was running down his face. It was so off-the-wall because she told America, with a straight face, that the election was stolen due to Venezuelan communist software on Dominion Voting System machines.

That’s right, Hugo Chavez rose from the dead to screw with us. Take that, capitalist swine!

Powell began to boast that she would prove all of this with a release of data, no doubt sourced from the deepest bowels of the internet. Totally reliable, not at all fake QAnon-level conspiracies. She called that data “the kraken” (because it would be “released,” get it?), and that name has stuck.

After that, even the White House legal team began to back slowly into the hedges whenever Sidney Powell was around. The campaign had in fact investigated her claims internally but could find nothing to back them up, yet it allowed her and others including Giuliani and Eric Trump to continue to spread the lies. 

The campaign officially cut ties with her not long after, saying she was no longer a lawyer for Trump, but she continued on her crusade, filing election cases and launching investigations into far-fetched but debunked theories from Antrim County, Michigan to Coffee County, Georgia (more on the latter in a bit.)

Even though the White House publicly disassociated itself from Powell, it continued to push her lies about the election, including around Dominion Voting Systems. And the Fox network, which paid a high nine-figures settlement to Dominion for defamation, put Powell on the air to amplify her lies, even while privately calling it “crazy stuff,” just like Trump did. 

In other words, she was a liar, but she was also a useful liar.

Nor was her time inside the White House completely over. She and a group of cohorts (dubbed “Team Crazy” by the official White House lawyers) finagled their way into a fateful meeting on December 18, 2020 with Trump and others. There, they presented their argument for the government seizing voting machines and declaring martial law. Powell’s client, retired Gen. Michael Flynn, was among those pushing for such action. Trump even entertained making Powell a Special Counsel to investigate alleged election fraud, but he was talked out of that by saner counsel, who described the meeting as “unhinged.”

Importantly, during the meeting Trump despaired that his White House lawyers weren’t giving him any path forward, while Powell and Team Crazy were. According to the report of the meeting by Axios, Trump turned to his White House legal team and said,

You guys are offering me nothing. These guys are at least offering me a chance. They’re saying they have the evidence. Why not try this? 

This is a critical pivot point legally, because Trump will seek to rely upon an “advice of counsel” defense, which could be defeated if prosecutors show that he was only interested in talking to lawyers who would give him a way to hang on to power, even if he personally thought their theories were “crazy.”

Powell is included in the federal D.C. indictment as an unnamed co-conspirator, identifiable by her description and her publicly known actions. But her role in Georgia was a bit more limited, though quite damning.

In the Georgia indictment, Powell is accused of conspiring with other defendants to illegally break into and obtain voting data from Coffee County election machines. One co-defendant, Scott Hall, already pleaded guilty to this, and I noted at that time that this would place enormous pressure upon Powell to also give up the game. (Powell’s cooperation likely has former Justice Department official Jeffrey Clark worried because he had calls about this scheme too, and these two co-defendants have likely told prosecutors all about his involvement.)

Why did Powell get off so easy?

You would think that someone within Trump’s inner circle who pleaded guilty to a conspiracy to commit intentional interference with election duties would get more than a slap on the wrist. Yet Powell is walking away with a fine of a few thousand dollars and six year’s probation. So what gives?

Setting aside that initial pang of justice falling short, when criminal defense lawyers see a sweetheart deal like this, offered to someone relatively low on the food chain, they don’t breathe easier. They usually don’t assume, for example, that the prosecutors have no case or have overcharged it. Instead they typically think, “Oh, wow, she’s spilled the tea.” That’s because a very lenient plea deal is usually a sign of how valuable the information is to the prosecutors.

Powell is one of the first defendants to plead out of the case in exchange for testimony against her co-defendants. The very first, Scott Hall, was someone who could point the finger straight at her. So in turn, she is pointing her finger at others. It’s commonly understood that the earlier you plead and cooperate, the better the deal. The other defendants watching this know that they are still in danger, and they really don’t want to still be inside the courtroom when the music stops.

In Powell’s case, prosecutors likely knew in advance what she had on people like Trump and Giuliani before they offered leniency. That’s because she made them a “proffer” of her evidence before the deal was sealed. Prosecutors likely heard that evidence and said, “Get that testimony from her, even if it means she skates free.” 

But what if she reneges?

So, how do we know a liar like Sidney Powell will ultimately keep her word and actually testify truthfully at trial against Trump? What if she gets up on the stand and changes her tune, or suddenly pleads the Fifth?

That may happen on television, but it’s really rare in actual trials. Here, prosecutors aren’t taking any risks. To this end, they had Powell record a video of her statement, so she’s pretty locked in. And if she changes her testimony in any way, that would violate the terms of her plea deal, which requires her to testify fully and truthfully, and she’ll be facing six years in Georgia state prison. She’s not going to risk that.

What about Chesebro?

The trial of Kenneth Chesebro is set to start on Monday, with jury selection beginning today. Chesebro and Powell both asked for speedy trials, and they sure got early dates. But now that Powell has pleaded guilty, there will be added pressure on Chesebro to do the same. That’s because Powell presumably will be providing pretty damning testimony about her co-defendants, and the chance of a RICO verdict against all of them just shot up.

On the other hand, Chesebro is probably glad that he doesn’t have to have his case tried at the same time as someone as unstable as Powell. Chesebro was offered a deal where he pleads guilty to a single felony racketeering charge conviction and agrees to testify truthfully, similar to Powell, but he rejected it, even though it would have resulted in just three years probation. We’ll see if he changes his tune now that the trial is about to begin and Powell has pleaded out.

In fact, that is likely the calculus of all the defendants at present. “It’s a real prisoner’s dilemma,” observed law professor Anthony Michael Kreis of Georgia State Univeristy. “Who’s talking; who’s doing what; what’s the deal I’m going to get? It’s a complicated set of game theory.”

What about the federal case?

Powell also has major exposure in D.C., plea in Georgia notwithstanding. Even though she hasn’t been charged yet, she is basically named as a co-conspirator. By listing and detailing the actions of the co-conspirators, Special Counsel Jack Smith is saying to them, “I have the goods on you.” 

Think about what this means, now that we know Powell is spilling the beans in Georgia. Everything she says to Fani Willis’s office about what she did in connection with the conspiracy will be fair game in a later D.C. case, and under the same charges Trump is now facing. If I were her lawyer, I would be keenly aware of this and would have made sure that she is also cooperating with Jack Smith’s office, or her testimony in Georgia could really come back and bite her in D.C. Some legal observers, such as Glenn Kirschner of MSBNC, believe that under these circumstances, it’s reasonable to conclude that she must already be cooperating.

If she’s got a deal in D.C. as well as Georgia, that’s all great news for her—kudos to her lawyer—but it’s terrible news for Trump, Giuliani, Clark and the others. That’s because, as the first section laid out, Powell likely can testify as to the other defendants’ states of mind and intentions, one of the hardest things to prove at trial. As noted by the Atlanta Journal-Constitution, “Powell can speak to closed-door Oval Office meetings she had with Trump, Rudy Giuliani and several other co-defendants.”

What did she and Rudy Giuliani talk about, for example, before going before the cameras in that insane presser? Did she have any private discussions with Trump or Giuliani after the December 18 meeting? And what did Trump know about her own plans to delay the electoral count on January 6, 2021?

Take a quick trip down a rabbit hole with me on this last one, because there just might be something there.

The Powell plan to stop the electoral count

As reported by Ron Filipkowski, who spends a lot of his time poring through right-wing media, Sidney Powell went on a far-right conspiracy peddler’s podcast in September 2021 and made a startling statement. She said that, on behalf of former Rep. Louie Gohmert (R-TX), she had filed a petition with the Supreme Court against Vice President Pence under the Twelfth Amendment, asking the justices to stop the electoral count. She was hoping that Justice Alito, who she claims was assigned to rule on the emergency request, would issue an injunction so that the count would be delayed.

This was completely in line, by the way, with what Trump and his cohorts wanted to do by way of congressional objections that might take the count past the January 6 date.

She hoped that Justice Alito would step in before Congress had completed the count, but then all hell broke loose, as we all know. Still, the petition was there before the Court, and her Hail Mary pass was still a viable way to get what she and Trump wanted: a delay of the proceedings.

It will be interesting to know whether Trump was aware of the possibility of an intervention by Justice Alito. Did Powell discuss her plan with him, or with Rudy Giuliani? 

One of the very related questions that, at least so far, only Trump can answer is this: Why did Trump do nothing, for hours and hours, to call off the rioters and put down the insurrection with force? Why did he just sit alone in front of the television and watch what was happening, his only action to tweet out about Mike Pence in order to rile up the insurrectionists ever further?

The answer according to the January 6 Committee is that Trump wanted the insurrection to continue because it would disrupt or delay the official electoral count, and that could mean buying time for the states to begin decertifying their results, as Jeffrey Clark expressly had wanted Georgia to do.

But was he also hoping for Justice Alito to rule and stop the count? Did he think there was even a chance of this, and that’s one reason why he let the chaos and carnage continue? 

I should say, like many other threads, we can pull on this one and find it leads exactly nowhere. But it’s an example of the many things we still don’t know about Sidney Powell and her role in all of this, beyond what she has done and said very publicly. 

But after yesterday’s plea, the Kraken has been released, at least from this case, and she’s about to do a lot of damage to those still in it.

Oh look, I feel better already!