The flurry of plea deals handed out by prosecutors in the case against former President Donald Trump in Georgia will speed up the trial and lock in testimony unfavorable to him, though it remains unlikely the trial could be squeezed in before the 2024 election, according to a former federal prosecutor.
The former president was indicted on Aug. 14 together with 18 others for their efforts to challenge the 2020 election results. Fulton County District Attorney Fani Willis alleged that the defendants engaged in a racketeering conspiracy to disrupt and delay the counting of electoral votes.
One of the defendants, bail bondsman Scott Hall, agreed to a plea deal that reduced his charges from seven felonies to five misdemeanors, and he received five years of probation, a fine, and community service. As part of the deal, he agreed to testify for the prosecutors.
Over the past week, three more defendants followed suit: former federal prosecutor Sidney Powell pleaded guilty on Oct. 19 to six misdemeanors, and over the next five days, defendants Kenneth Chesebro and Jenna Ellis each pleaded to one felony count with a promise that the prosecutors will only recommend probation. Under Georgia law and as first offenders, their record would be expunged upon completing probation. All three also agreed to testify for the prosecution.
The deals significantly speed up the case. Ms. Powell and Mr. Chesebro both originally requested a separate, speedy trial that was scheduled to start on Oct. 23. Fulton County Superior Court Judge Scott McAfee, who presides over the case, estimated the trial could take five months, assuming swift jury selection, which wasn’t guaranteed. That would have pushed President Trump’s trial further into 2024 and possibly beyond because of scheduling conflicts with three other trials he’s facing next year in New York, Florida, and Washington, D.C.
With the Powel-Chesebro trial out of the way, Ms. Willis can now push for an earlier trial date for the former president and the remaining co-defendants.
“This is a big deal,” said John Malcolm, Heritage Foundation legal fellow and a former federal prosecutor in Georgia.
“All the witnesses that she was going to have to call and have their stories laid out, she now doesn’t have to do that.”
The timing of the case has political implications because it may be in President Trump’s interest to delay the trial beyond the 2024 election. He currently polls by far the highest among Republican contenders for the party’s nomination.
Ms. Willis has demonstrated that she’s willing to promise no jail time, creating an incentive for the defendants to plead guilty, especially in a racketeering case in which the minimum sentence is five years in prison.
“I won’t call it a sweetheart deal, but they’re getting a very favorable deal,” Mr. Malcolm said.
They may also operate under the assumption that they get better plea deals if they plead earlier, he said.
If Ms. Willis is trying to get the trial over with before the election, she may try to cut down the number of defendants as much as possible to shorten the trial.
Even then, however, the timeline may be unrealistic, Mr. Malcolm said, given that two other trials with President Trump are already scheduled for March and May 2024, one civil trial is ongoing in New York, and another criminal trial in New York is likely to take place later next year.
“I still think it’s highly unlikely that the Atlanta trial takes place before the election. I won’t say it’s impossible, but I think it’s highly unlikely, particularly with 15 defendants,” he said.
Guaranteed Testimony
The plea deals ensure that Ms. Willis will hear what she wants to hear from the former defendants when they testify.As per standard practice, defendants make a statement to prosecutors in which they make specific admissions that earn them the plea deal.
“I’m sure that whatever statement they made, it was typed up and presented to them. And they said, ‘Yes, that would be my testimony,’” Mr. Malcolm said.
The statement itself can’t be used in court.
“It’s hearsay. The witness is available, so the witness has to be subject to cross examination,” he explained.
“The defendant, Donald Trump, has a Sixth Amendment right to confront the witnesses against him.”
But the witnesses can’t just walk back what they said in the statement.
“I assume that whatever statement they made has been said under penalty of perjury, and I suppose that they could be accused of either violating their plea agreements, in which case more serious charges would be reinstated against them, or they could be charged with perjury,” he said.
That may put a defendant in a precarious position, especially if the plea is to something he or she knows isn’t true.
Ms. Powell, for example, was accused of having a data forensics company, SullivanStrickler, copy data from election machines and computers in Coffee County, Georgia, without authorization on Jan. 7, 2021. The data were meant to be examined for evidence of election fraud.
Though her charges were reduced from felonies to misdemeanors, the accusation she signed maintains that she conspired to have the data firm access the voting machine data without authorization.
Yet her lawyer, Brian Rafferty, previously argued in court that this was false and there was no evidence of it.
Harvey Silverglate, a lawyer for co-defendant John Eastman, warned that testimony obtained through a plea deal is inherently questionable.
“Is she going to tell the truth, or is she going to say something to satisfy Fani Willis?” he asked, referring to Ms. Powell.
In his experience, such a “rewarded testimony is more often false than it’s true,” he previously told The Epoch Times.
“I’ve been doing this since 1967 and I’ve heard very few turned government witnesses, rewarded government witnesses, tell the truth, the whole truth, and nothing but the truth.”
Mr. Malcolm suggested that lawyers for the defendants are sure to hammer that point when questioning the witnesses.
“They’re going to be subject to vigorous cross examination because of the plea deals that they’ve been offered,” he said.
It may still significantly help the prosecution.
“They’re going to say, ‘I was in a room when I heard this person say the following.’ And they may have some documents in their possession that were previously unknown to the government to back up their testimony,” he said.
Ms. Willis may also be willing to let most of the defendants walk given that one of them, President Trump, is by far the most valuable target.
“I assume that their ultimate target is Donald Trump and the more people they get to say, ‘I committed a crime and I did it for him,’ the better it is for the prosecution,” Mr. Malcolm said.
