Opinion Why Chesebro cut a deal and what it means for Trump
WAPOLawyer Kenneth Chesebro peppered now four-time-indicted former president Donald Trump with written advice as to how he might overturn the results of the 2020 presidential election, knowing that no court had found evidence of fraud and that no state had withdrawn its delegates for Joe Biden. On Friday, after previously rejecting a deal, Chesebro pleaded guilty to one felony for conspiracy to submit a false document. In addition to accepting three to five years of probation and payment of restitution and a fine, he agreed to cooperate in other cases. This came after the plea on Thursday from former Trump lawyer Sidney Powell (of “release the Kraken” fame) to six misdemeanors; she, too, agreed to cooperate.
What became of Chesebro’s arrogant insistence he could not be prosecuted for giving “legal advice”? Simply put, Chesebro lost critical pretrial motions that made this defense practically impossible.
On Wednesday, Judge Scott McAfee “rejected Chesebro’s request to exclude from the trial key evidence in the case — memos in which Chesebro outlined how the Trump campaign could use Republican electors in states Biden won to help overturn the election,” the Atlanta Journal-Constitution reported. “Chesebro argued they should be excluded because they are protected by attorney-client privilege. But in his ruling, the judge rejected that defense, saying the memos are not subject to protection because there is some basis to believe they were used in the commission of a crime.” (That finding echoed U.S. District Judge David Carter’s decision regarding lawyer John Eastman’s documents. Carter ruled that Eastman could not claim attorney-client privilege for emails he had sent to Trump since they likely constituted evidence of a crime.)
On Thursday, Chesebro stood at risk of having other arguments barred. Fulton County District Attorney Fani Willis made four motions to prevent Chesebro from (among other things) advancing his planned defense. Chesebro wanted to argue that he lacked the requisite intent needed to convict because he believed his own legal theory that then-Vice President Mike Pence could throw out electors for Joe Biden. He also wanted to put a legal expert on the stand to testify to the merits of his crackpot legal theory.In an amicus brief before Chesebro’s plea deal, a slew of former Justice Department lawyers, a state attorney general, U.S. attorneys and a former governor offered support for Willis’s motions, explaining that “the Georgia legislature has made a firm policy determination that individuals are assumed to know the law ... and the Georgia courts have repeatedly and conclusively precluded defendants from introducing evidence of or arguing mistake of law to the jury.” Allowing Chesebro to argue he believed his own crackpot theories would violate that prohibition and confuse the jury.
Likewise, the authors of the brief supported Willis’s demand to exclude expert testimony on Chesebro’s behalf that would lend credence to his crackpot legal theories. Experts testify as to facts, not the law; the judge should decide the legal issues, they argued.
If the judge had gone forward to rule that Chesebro could not argue mistake of law or call an expert witness, there would have been little for Chesebro to do at trial. Even attacking prosecution witnesses’ credibility would not have gotten him very far. His own writings incriminated him, which is why he struggled in vain to keep them out of trial. With no defense left, Chesebro took the plea offer.
Chesebro’s memos, dating from Nov. 18, 2020, through Dec. 24, 2020, would be devastating to any defense. Chesebro went from suggesting slates of alternate electors should be chosen in case a court threw out Biden electors to openly advocating that even in the absence of litigation, phony electors could be chosen and relied upon to deny Biden his rightful victory.
The Dec. 24 memo might have been the most devastating to Chesebro. The New York Times reported:
Mr. Chesebro argued there was little doubt that the litigation would fail in court — he put the odds of winning at “1
percent” — as Mr. Trump continued to push his baseless claims of widespread fraud, according to emails reviewed by
the New York Times.
But the “relevant analysis,” Mr. Chesebro argued, “is political.”
Thus, by his own admission, this was not dispassionate legal advice but a political gambit dressed up in legalese. Chesebro even suggested that part of the rationale for advancing far-fetched legal arguments was to instill in the Supreme Court “fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.” Stoking fear of violence hardly qualifies as legitimate legal advice. Moreover, Chesebro’s appearance on Jan. 6, 2021, alongside Infowars host Alex Jones confirms he was not acting as a lawyer but rather, as Willis alleged, a player in a “criminal enterprise” (under RICO law) to subvert the election.
The Powell and Chesebro pleas should have Trump quaking in his boots. “Trump’s illegitimate assault on the outcome of the 2020 election stood on two legs: the factual assertion that he had actually won and the legal claim that he had the right to use false electoral certificates to have Vice President Pence change the outcome in Congress on Jan. 6,” Norm Eisen, counsel for the writers of the amicus brief described above, told me. “With the guilty plea of Sidney Powell, the first [former lawyer] was knocked out from under the former president. Now, with the guilty plea of Kenneth Chesebro, the second has also fallen away.” In short, Eisen thinks, “Trump is toast.”Chesebro likely will not be the last defendant to take a plea deal. Other Trump lawyers, including Jenna Ellis, Rudy Giuliani and Eastman, will feel pressure to make their own deals or face a jury that will hear former co-counsels Powell’s and Chesebro’s testimonies.
Politically, lawyers Dennis Aftergut and Austin Sarat argue, “it’s reasonable to expect a drip, drip, drip of information ferreted out by energetic reporters in the media about cooperators’ knowledge of Trump’s role in trying to overturn our democracy.” That might not shake his core MAGA supporters, but it could scare the daylights out of GOP regulars who will see their 2024 hopes going up in smoke.
In any event, we can expect Willis, with a total of three plea deals, to return to court, seek trial dates for remaining defendants and then ramp up pressure to snare more cooperating witnesses. Even Trump must recognize she’s on a roll.
