Lightning Round: Flippers and Floppers

Jenna Ellis, formerly of the Trump “Elite Legal Strikeforce,” watches on in Michigan in 2020 as co-defendant Rudy Giuliani makes a stink before state legislators. Photo courtesy of Buzzfeed.

There are four stories in the headlines today in law and politics, each deserving of discussion. So let’s play a Lightning Round, one I’m calling “Flippers and Floppers” for reasons I’ll explain. Here’s the quick round-up before I dive in a little deeper.

Round One: Jenna Ellis flipped. Following on the guilty pleas of three of her co-defendants in Georgia, including fellow “Elite Legal Strikeforce” member Sidney Powell, Ellis has agreed to cooperate and testify for the state in the case. She even gave a tearful apology for the cameras, a performance that rivaled Kyle Rittenhouse’s in his Kenosha murder trial.

Round Two: Michael Cohen flipped, finally in court with Trump sitting right there. For years Cohen has had Trump on blast and had vowed to help take him down, and on Tuesday he had his first opportunity to do so, under oath, in New York State court. And yes, there were some fireworks.

Round Three: Rep. Tom Emmer (R-MN) flopped. The No. 3 Republican managed to win the nomination of his party Speaker, defeating Rep. Mike Johnson (R-LA) in a closed session ballot, only to pull out of the race after a roll-call vote showed he had fallen even shorter than his predecessor nominees and was struggling to get to 217 votes from his colleagues.

Round Four: Mark Meadows flipped, well, sort of. In a scoop by ABC News, Meadows reportedly met with federal prosecutors and testified before Jack Smith’s grand jury in exchange for some level of immunity, though it’s unclear whether it’s broad or narrow. If the report is accurate—and Meadows’s lawyer is disputing its accuracy, so who knows—it is more, very bad news for Trump.

Ready to go four lighting rounds with me? Here we go.

Jenna Ellis

It’s always seemed very bizarre to me that Jenna Ellis was ever in any group of attorneys challenging the election of 2020. She is not a constitutional lawyer, nor does she have any experience in election law. Instead, in Trump’s eyes Ellis was a loyal information warrior who knew how to troll online and made convincing sounding statements to his gullible followers.

Ellis spent weeks after the election standing by (and breathing in the foul air next to) Rudy Giuliani as he went before state legislators in Michigan and Georgia to peddle his election lies. The two of them, along with attorney Ray Smith, pushed claims that they knew had been debunked in order to create the illusion of a massive, nationwide conspiracy that also impacted the Georgia election. None of it was true, but the legislators came away from that hearing parroting their lies.

For these actions, Ellis has faced bar disciplinary hearings in her home state of Colorado, where she has been censured. Then she faced charges in Georgia, including a dangerous RICO claim that could land her in prison for taking part in a criminal conspiracy to overturn the Georgia 2020 election. She decided, likely after seeing others get off lightly because they agreed to cooperate right away, that it was worth burning what last bridges she had with the far right in order to save her own skin. (Trump already allegedly had refused to fund her legal expenses because she had supported his rival, Ron DeSantis, for the GOP presidential nomination. Nevertheless, Ellis, ever the grifter, raised over $200,000 in a crowdfunding campaign for her “defense,” only to flip as soon as there was any heat. I doubt she’ll be refunding any of that money.)

Ellis’s plea bargain goes further than those of her co-defendants because it is an ongoing, cooperative one. That means she will not only testify against her co-defendants, she will meet with prosecutors and answer their questions in the future. This is important because she has inside information about not only the “elite legal strikeforce” (I smile every time I type those words) but also the efforts to pressure Mike Pence to violate his constitutional duties and declare the election for Trump or otherwise throw out valid votes.

Ellis was my pick for the next to flip, and I wasn’t disappointed. While it would be more satisfying if she had to serve hard time for her role in the conspiracy, Fani Willis doesn’t really care about punishing Jenna Ellis. What she wants is what Ellis knows about her superior, Rudy Giuliani. Up and up it goes.

Michael Cohen

The reason Trump is sitting in a New York courtroom with the entirety of his business operations at risk (and will face a criminal case in Manhattan for false business statements) is because of his former fixer, Michael Cohen. Cohen was convicted and sentenced for unrelated tax crimes but agreed to flip on Trump in exchange for some leniency, though he did spend over a year in jail and the rest of his three year sentence in home confinement during the pandemic.

Cohen told investigators that Trump had a decades-long practice of inflating the values of his properties on his financial statements in order to obtain favorable loans from banks. That’s illegal in New York, and while the Manhattan DA elected not to pursue that criminal case, mostly because Trump’s CFO Allen Weisselberg wouldn’t flip and testify against him, New York Attorney General, Letitia James, brought a civil action based on the fraud.

The stakes are very high. James already secured partial summary judgment on the question of whether the financial disclosures were fraudulent. We are now in the trial phase of the case on the question of damages and remedies, i.e., whether the behavior was egregious enough to warrant massive fines (up to $250 million requested by James). The trial will also determine whether the defendants violated other laws. If Trump loses here, his business empire will be on life support.

Cohen was the most anticipated witness in the case, which is proceeding as a bench trial (meaning no jury). And on Tuesday he came in and faced his former boss in person for the first time in years. Trump didn’t have to be there, but chose to be to face down Cohen. (First, a special thanks to Ron Filipkowski for a great and thorough summary of yesterday’s events in court.) 

Prior to the testimony, Trump publicly attacked Cohen, saying he was a “liar trying to get a better deal for himself.” It is true, of course, that Cohen is a liar, and this fact came out during his cross-examination by Alina Habba, who got him to admit, plainly, that he had committed perjury before, including before Congress when Cohen stated that Trump had no plans to build a “Trump Tower Moscow.” But that tower had been the subject of extensive discussions between them both before and during the 2016 campaign. The important thing to remember is that Cohen committed perjury in order to protect Trump. He’s telling the truth now because he no longer wants to protect his former client.

Cohen testified about how he and Weisselberg would “reverse engineer” Trump’s property values using arbitrary numbers determined solely by Trump. Trump would give his desired valuation for his net worth, and then he and the CFO would change the numbers in the asset sheets to get there. 

“I was tasked by Mr. Trump to increase the total assets based upon a number that he arbitrarily elected,” Cohen testified, noting that it was his role to “increase those assets in order to achieve the number.”

Using faked figures, Trump’s net worth could change from $4.5 billion to $6.0 billion with just a few big number changes, and Cohen gave many examples including Trump Park Avenue, the Seven Springs estate, and 100 Central Park South.

The false net worth claims put Trump in a position with banks to do more than he could have had the assets been accurately valued and stated. One example Cohen gave was the attempt to buy a football team, the Buffalo Bills. Trump needed a loan from Deutsche Bank to do this, which would have cost him $1 billion. So he told the bank he was worth a whopping $8 billion. And that was utter baloney. (Thankfully, he did not succeed in buying the team.)

Cohen’s testimony will continue today on cross-examination by Habba. It is quite something to see a former lawyer of Trump take the stand and testify against him. But with the plea deals of Powell, Chesebro and Ellis now in Willis’s pocket, we will see even more of this down the road.

Tom Emmer

The flop of the day goes to Tom Emmer, who lasted far shorter than one Scaramucci. They couldn’t even put up a head of lettuce in time to see if he outlasted it. Emmer was nominated by the GOP conference on Tuesday shortly after noon, but just over four hours later, he withdrew from contention. There was never a House floor vote.

The day had begun with eight candidates for the job, with Emmer, who is the Majority Whip, leading the pack. Early rounds showed cracks in any unified conference, with at least five members voting for people who weren’t even running. Rep. Bill Huizenga (R-MI) told reporters that this was “problematic” because if six people didn’t vote for the designee, there would be no new GOP Speaker.

Emmer won the nomination after four rounds of balloting, beating out conservative hardliner Rep. Mike Johnson (R-LA) for the role. But some two dozen holdouts wouldn’t back him. He tried to meet with them in private, and that went rather poorly. “It’s a dumpster fire, frankly,” Rep. Huizenga said.

Who took him down? Many of the same hardliner allies of Donald Trump who torpedoed former Speaker Kevin McCarthy (R-CA) and prevented his No. 2, Rep. Steve Scalise (R-LA), from succeeding him. They were backed in large part by Trump, who posted on Truth Social that he was not a fan of Emmer.

“I have many wonderful friends wanting to be Speaker of the House, and some are truly great Warriors,” Trump wrote. “RINO Tom Emmer, who I do not know well, is not one of them.”

“He fought me all the way,” Trump added. “I believe he has now learned his lesson, because he is saying that he is Pro-Trump all the way, but who can ever be sure?”

Rep. Matt Gaetz (F-FL), who uncharacteristically had been lobbying for Emmer, switched his vote immediately, saying it was important to listen to “the leader of our party” on this.

Many of the extremists objected to the fact that Emmer had voted for same-sex marriage. Others had problems with his vote for Ukraine aid, still others with his support for the bipartisan debt ceiling and government funding bill.

Democrats had offered privately to sit out the vote and allow Emmer to squeak in if he would agree to holding up or down votes on key bills including the budget and Ukraine aid. But Emmer refused to deal with the Democrats, and now he, too, is toast.

That leaves Mike Johnson as the next highest vote getter. But there are many who oppose Johnson, who is an election denier and a MAGA loyalist, for the same reasons they opposed Jordan. It is unlikely that Johnson will win out here. The only question is whether he will start a civil war over his candidacy and allow threats of violence from the base to gush, as Jordan did for many days.

Mark Meadows

ABC News reported on a story that many legal observers have long suspected: that former Chief of Staff Mark Meadows had agreed to testify against Trump and had in fact likely done so under some kind of deal. This broad sense stemmed from how absent Meadows has been in the public eye in recent memory and how, following the publication of his lie-filled book, he had not really resurfaced.

In June of this year, we learned from the New York Times that Meadows had in fact testified before Smith’s grand jury, though over what wasn’t clear. Now, according to ABC’s sources, Meadows did in fact come in to speak to prosecutors and to testify before the grand jury under an immunity arrangement. The report states that Meadows repeatedly called into question Trump’s assertions over the election and called them “baseless.” He told prosecutors that Trump was being “dishonest” when he prematurely and publicly claimed victory on election night in 2020. 

Meadows testifying in this manner against Trump would be a very big deal because it would go a long way toward establishing Trump’s state of mind in pushing the fraud on the electorate.

But wait, does this now mean Meadows isn’t going to be charged? Did Jack Smith agree to let him off scot-free?

Some have wondered whether Smith granted Meadows “transactional immunity,” meaning Smith agreed not to prosecute Meadows for any crimes Meadows testifies about. That would be quite broad, and great for Meadows, but as a reader commented below (leading to this edit) transactional immunity is only available in certain states and not in federal criminal law.

If Meadows got immunity, it what’s called “use immunity,” meaning that the specific testimony by Meadows can’t later be used against him. They can still prosecute him for crimes, but they just can’t use his grand jury testimony as evidence. Because this wouldn’t be that useful to Meadows at all, he may have gotten some other promises of leniency, too.

It’s also important to remember that Meadows is under indictment in Georgia and is fighting hard to get the case removed to federal court. That issue is now pending before the 11th Circuit after Judge Steve Jones denied his removal request. So he’s by no means in the clear legally, even if Smith doesn’t wind up prosecuting him.

Thanks for sticking through this rather long lightning round, which didn’t quite live up to its name in brevity. It’s admittedly challenging to get the important information in without overburdening readers!

[Correction: As a reader pointed out, it was Judge Steve Jones of the federal district court who denied the removal request, not Judge Scott McAfee, who is in Georgia state court in Fulton County. It’s been corrected.]