Who among Donald Trump’s Georgia co-defendants might flip?
A question looms over the Georgia racketeering case against former President Donald Trump and others: Who might flip?
A question looms over the Georgia racketeering case against former President Donald Trump and others: Who might flip?
Trump and all 18 of his co-defendants have pleaded not guilty in recent days to a 41-count indictment accusing them of a “criminal enterprise” to overturn Trump’s 2020 loss to Democrat Joe Biden. Wednesday was the deadline for the defendants to be formally read their charges or to waive that process, known as arraignment.
If history is any indication, some of those charged will be changing their pleas to guilty in coming months after negotiations with Fulton County District Attorney Fani Willis. She has said she is ready to try all the defendants together as soon as next month, and has been amenable in past racketeering cases to allowing some defendants to plead guilty in exchange for lower recommended sentences.
“People who are lower on the chain – who had minor roles in the conspiracy – those people might cut a deal,” said Christopher Timmons, a former county prosecutor in Georgia who has tried racketeering cases and seen cooperation lead to probationary sentences.
Willis, a Democrat, charged the 19 with various felony crimes, including violations under the state’s Racketeering Influenced and Corrupt Organizations Act, which is based on the 1970 federal RICO statute initially designed to go after mobsters. Those charged in the Georgia case include not only household names, such as Trump advisers Rudy Giuliani and Mark Meadows, but also a pastor, a publicist and a former schoolteacher.
About 98 per cent of federal criminal cases get resolved through plea bargaining, and many state court systems have similar statistics, according to an American Bar Association report.
Trump’s co-defendants have already embarked on divergent legal strategies. Three of them – David Shafer, Cathy Latham and Shawn Still – said in court filings they were acting at Trump’s direction when they participated in an alleged “alternate elector” scheme. Others have asked to be tried separately from Trump and other defendants.
The calculations for many of Trump’s co-defendants will be difficult. Pleading guilty and cooperating with prosecutors might help a defendant avoid prison and burdensome legal fees, but at the price of potentially deep professional consequences and being seen as having turned against Trump.
Going to trial and losing, on the other hand, would likely mean a prison sentence.
In conspiracy cases, low-level defendants often exchange testimony against higher-level targets for lighter sentences or immunity: The little fish turn on the big fish. Prosecutors say this approach in RICO cases lets them bring to justice the people calling the shots.
Many defence lawyers bemoan this sort of plea bargaining, especially in RICO cases.
“You can get a witness to flip and say absolutely anything,” said Harvey Silverglate, a defence lawyer for Trump co-defendant John Eastman. “Flipped witnesses are inherently unbelievable.” Eastman, a former law professor who helped devise Trump’s postelection legal strategy, has publicly ruled out a plea bargain – an unusual move so early in a case.
“Eastman is not going to make a deal,” Silverglate said. “He’s not going to offer to lie about somebody else in order to get out of trouble.”
Other defendants might feel differently as lawyer bills mount. Trump is slated to appear at a $100,000-a-plate fundraiser for Giuliani on Thursday. But the former president has made no public statements on whether his political-action committee will cover legal fees for his Georgia co-defendants, as it has for Trump’s two co-defendants in the separate federal case in Florida alleging mishandling of classified documents.
“I was reliably informed Trump isn’t funding any of us who are indicted, ” one-time Trump attorney Jenna Ellis said last month on X, formerly Twitter. “I totally agree this has become a bigger principle than just one man. So why isn’t MAGA, Inc. funding everyone’s defence?” she added, referring to Trump’s super PAC.
Ellis’s lawyer didn’t respond to requests for comment.
A sprawling indictment from 2013 highlighted the risks facing RICO defendants in Georgia.
Willis’s predecessor indicted 35 teachers and administrators in the Atlanta public school system in a racketeering case alleging they conspired to alter test answers to improve score results.
In one of the largest school-cheating scandals in U.S. history, 21 of those originally charged reached plea agreements with prosecutors. Two defendants died of cancer, and 12 went to trial. A jury found 11 of those 12 guilty of racketeering and other charges.
Several of those found guilty at trial were sentenced to substantial prison terms, shocking their families and supporters.
In the election case, defendants might receive more favourable treatment if they cut a deal before anyone else. Once prosecutors feel they have enough testimony and evidence to make their case before a jury, they are typically less inclined to make lenient deals.
The eight lawyers charged in the case might be more inclined to roll the dice on a trial, said Timmons, the former county prosecutor, since pleading guilty to a felony would cost them their law licenses. Two lawyers charged in the case – Kenneth Chesebro and Sidney Powell – have asserted their statutory right to a speedy trial.
Fulton County Superior Court Judge Scott McAfee ordered a hearing for Wednesday on a request from Chesebro to sever his trial from that of the other defendants.
It isn’t likely that Trump, who has condemned Willis’s prosecution as a “witch hunt,” will negotiate with prosecutors. The former president faces three other indictments – the federal case in Florida, a federal case in Washington and a state case in New York – and maintains his innocence in all of them.
Trump’s lawyer in the case declined to comment.
For Trump and other high-profile defendants, there is more reputational cost to taking a plea deal, Timmons said.
“They’d rather be what in their mind is a political prisoner than admit some sort of fault,” he said.
Dow Jones
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