Below is a longer version of my column in the New York Post on the leaking of the interviews of former counsel to Donald Trump. The interviews could magnify the difficulties for both Fulton County District Attorney Fani Willis and Special Counsel Jack Smith in their respective prosecutions. These cases still represent a serious threat to Trump, but these prosecutors must first overcome a glaring potential contradiction. That does not mean that Christie and the other candidates will not get a “Spring Break” with a conviction, but it could prove more challenging even with highly favorable jury pools.
Here is the column:
This week, Chris Christie declared that “it’s over” for Donald Trump and predicted that the former president would be a convicted felon “by the Spring.” He was specifically referring to the prosecutions linked to the 2020 election denial in Atlanta and D.C.
However, Yogi Berra would likely caution that, in baseball and litigation, “it ain’t over till it’s over.”
Trump’s greatest threat of conviction remains in Florida, where he is facing federal charges related to his retention of classified documents.
But the judge in that case seems inclined to delay it, perhaps even until after the election.
And with reports that Biden will not face charges in his own handling of classified documents, Trump has a political rallying cry that — correctly or not — he’s being treated differently.
So that leaves the two cases surrounding the 2020 election.
In Georgia, a slew of former lawyers are taking pleas with promises to testify if called. Some of their depositions have been leaked, much to the dismay of Fulton County District Attorney Fani Willis. She has reason to be alarmed because some of the leaked interviews hit hard at the weakest link in her conspiracy case.
For instance, Sidney Powell stated that Trump clearly believed that he had won the election when he was challenging the results in the courts and Congress.
Powell pleaded to misdemeanors for a deal that avoids jail time and preserves her ability to resume the practice of law. She notably did not plead guilty to the sweeping racketeering charges brought by Willis to link Trump in an effort to subvert the election.
I previously wrote that the Achilles heel of the criminal complaint was Trump’s state of mind: “As a threshold matter, one problem is immediately evident. If Trump actually did (or does) believe that he did not lose the election, the indictment collapses.”
That’s exactly what Powell argues. Trump had “general instincts that something wasn’t right here.” She added “I didn’t think he had lost. I saw an avenue pursuant to which, if I was right, he would remain president.”
That supplies a key defense for Trump: That he believed assurances from counsel that he had a case to make in challenging the election.
Powell’s statement will also present challenges to Special Counsel Jack Smith who has a parallel case in Washington, D.C. While both prosecutors benefit from heavily favorable jury pools in staunchly Democratic strongholds, it requires only one holdout juror to result in a hung jury.
Smith has admitted that Trump’s election claims were protected under the First Amendment, but claims that, at some point, they became criminal lies. But Smith fails to explain when that line was clearly crossed — a dangerous ambiguity for free speech, particularly in the context of an election.
Smith ignores past election challenges by Democrats that were made without factual or legal support, including the challenge in Congress to certifying Trump’s victory in 2016 by figures like Rep. Jamie Raskin (D-Md). The statement of Powell only magnifies those concerns over the lack of a clear line between political advocacy and criminal conduct in future cases.
As part of his own agreement, former counsel Kenneth Chesebro pleaded guilty to conspiracy to commit filing false documents. Again, the deal avoided jail time and allowed him to keep his law license.
His attorney, Scott Grubman, said that Chesebro “never believed in ‘the Big Lie’ ” and that he knows Joe Biden won the election. However, the question is what he told Trump about avenues for challenging the election. Grubman was quoted in the Messenger as stating that he “do[esn’t] think” Trump should be concerned about Chesebro’s plea and Chesebro “didn’t snitch against anyone.”
Previously, Chesebro’s lawyers stated that nothing about his “conduct falls outside the bounds of what lawyers do on a daily basis; researching the law in order to find solutions that address their clients’ particularized needs.”
Both the prosecutors and media have maintained a conflicted narrative of a man who could not accept defeat and a man who knew he was defeated.
Trump has long been portrayed as a megalomaniac in the media who never apologizes nor accepts failure. It is perfectly consistent that a man long described as having an inflated self-image would not accept that he is a loser.
That long-held journalistic view is now a viable criminal defense.
The Georgia case has strong individual claims for crimes like unauthorized access to voting machines or areas. But that clarity is lost in the effort to establish a massive racketeering conspiracy to ensnare Trump.
While polls increasingly show Trump winning a general election against Biden, pundits point to these criminal trials as proof it’s all over.
However, none of these cases are truly slam dunks, particularly with the danger of hung juries.
In the end, both Willis and Smith are saying that a client can be criminally liable for taking the advice of counsel. Yet, his former counsel still maintain that “I didn’t think he had lost. I saw an avenue pursuant to which, if I was right, he would remain president.” Willis will argue that not only the lawyers should be punished for these claims but so should the client in following their advice. Moreover, she will seek to use the lawyers themselves to convict their client for listening to them.
Former counsel Jenna Ellis quotes another Trump aide in saying that the court losses did not matter because “we don’t care, and we’re not going to leave.’” However, the man she now calls a “narcissist” did indeed leave. He left with counsel publicly maintaining their ongoing claims of fraud, including Ellis. The question is whether such bad lawyering can make a good case for the prosecution.
For candidates like Christie, it is understandable to hope that the courts will finally dislodge the hold of Trump on this primary. He, like others, look at this election, to paraphrase Richard III, as “the winter of our discontent made glorious summer by this son of [New] York.” However, spring could just as easily bring more discontent rather than convictions.
Jonathan Turley is an attorney and professor at George Washington University Law School.