In the last two days, the quest to hold accountable those who allegedly interfered in the 2020 presidential election has taken two dramatic and potentially far-reaching turns. Lawyers Sidney Powell and Kenneth Chesebro have decided to plead guilty and testify against their co-defendants in Fulton County District Attorney Fani Willis’s sprawling RICO prosecution. The pleas could prove to be a proverbial nail in former President Donald Trump’s legal coffin.
Powell pleaded guilty to six misdemeanor counts, while Chesebro pleaded to a felony count of conspiracy to commit filing false documents. Both were committed as part of a corrupt scheme to overturn the results of the presidential election in Georgia. Their co-defendants in that case include Trump, former White House chief of staff Mark Meadows and Trump’s personal attorney Rudy Giuliani, among others. Although it’s not clear how much direct evidence the pair may be able to offer against their co-defendants, the guilty pleas affirmed that there was indeed a criminal conspiracy to corruptly interfere in the Georgia election. That is ominous for their co-conspirators and vindicates Willis’ theory of prosecution.
Powell’s prominence, in particular, in the president’s orbit after the 2020 election cannot be understated.
Their pleas have implications far beyond Georgia state lines. Given their proximity to Trump after the 2020 election, the guilty pleas could be important in special counsel Jack Smith’s prosecution of Trump for election interference.
Powell and Chesebro were two of six unnamed co-conspirators in Smith’s indictment in that case. Together with Giuliani, Powell hopped from jurisdiction to jurisdiction, peddling wild election conspiracy theories and bringing bogus court challenges to keep Trump in power.
Powell’s prominence, in particular, in the president’s orbit during that period cannot be understated. Recall that Trump discussed naming Powell as a special counsel to investigate voter fraud. That appointment was included in a draft executive order that also would have directed the military to seize voting machines in battleground states.
Powell was reportedly present at one or more Oval Office meetings at which these illegal, undemocratic schemes were allegedly proposed, discussed and — given the draft presidential order — nearly executed. To say Powell is likely to have incriminating evidence against Trump himself is an understatement.
What do Powell and Chesebro’s pleas tell us about the approaches they’ll likely take in connection with her criminal exposure in Smith’s case? Given that the special counsel’s indictment of Trump announced in a very public way that six co-defendants allegedly assisted Trump in interfering in the 2020 election, I believe it’s highly likely that those six defendants will be indicted and tried for their crimes — unless they plead guilty and cooperate with federal prosecutors.
Neither Powell’s nor Chesebro’s plea deal ends the possibility of imprisonment.
Given how intertwined the Georgia crimes are with the broader election fraud scheme — involving many of the same co-conspirators — it’s impossible to envision how Powell or Chesebro could mount a successful defense to the federal election crimes now that they've pleaded guilty to state election crimes. In short, in the opinion of this former career federal prosecutor, I would expect they either already are or soon will be formal cooperating witnesses in Smith’s 2020 election case.
None of this is to suggest that their testimony will necessarily be convincing. Cooperating witnesses, by definition, are criminals — they committed crimes, pled guilty to those crimes and agreed to testify truthfully against others — and rebuilding her credibility for a trial jury will be no easy task for prosecutors.
For example, there is plenty of video of Powell making outrageous — and ultimately false — claims of election fraud. Defense attorneys will vigorously cross-examine her along the lines of, “Were you lying then or are you lying now?”
But that is a routine attack on a cooperating witness, which prosecutors will anticipate. Indeed, Powell can establish not only that she was “lying then,” but that her lies were in service to, and perhaps even at the direction of, her co-conspirator Donald Trump. This would convert Powell’s lies into evidence that actually incriminates Trump.
However, there’s a more fundamental problem with — and ultimately a more fruitful attack on — Powell’s credibility: her sweetheart plea deal. Powell was indicted on multiple felony counts, with the lead count alone carrying up to two decades in prison. Yet she was allowed to plead guilty to a series of misdemeanors and did not receive a minute of jail time.
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.
Furthermore, neither Powell’s nor Chesebro’s plea deal ends the possibility of imprisonment. As noted earlier, they’ll still face criminal exposure in the federal case. The Georgia prosecutors might have been willing to extend a probation-only plea deal to Powell and Chesebro. But I doubt the federal government will be quite so generous.
In the event that either pleads guilty and cooperates in the federal prosecution of Trump, there are compelling societal interests that militate in favor of a period of incarceration for crimes that were designed, in a very real and direct sense, to bring an end to our great American experiment. Crimes like that deserve more than mere probation. Not if we’re serious about deterring Trump and other would-be dictators from trying it all over again.
