If You’re Thinking About Flipping on Trump, Now’s the Time

“Sometimes, when people come to cooperate late in the game, prosecutors say, ‘no thanks, I’ve got all the evidence I need.’”

by Todd Zwillich

August 18, 2023, 1:34pm

This content comes from the latest installment of our weekly Breaking the Vote newsletter out of VICE News’ D.C. bureau, tracking the ongoing efforts to undermine the democratic process in America. Sign up here to get it in your inbox every Friday.

Personal news: I’ll be guest-hosting 1A on NPR Monday and Tuesday, and Monday will be all about indictments. You should listen, and let me know what you think!

Be there, will be filed!

Fulton County DA Fani Willis is seeking to kick off arraignments the week of Sept. 5. And with officials’ assurance that Donald Trump and his 18 co-defendants will be booked just like everyone else in Fulton, that means a likely visit to infamous 901 Rice St. jail for processing.

Willis is gunning for a very ambitious March 4, 2024 trial date. But before she even gets close, we’re in for many months of pre-trial motions, attempts to change venues, and, if this is like many other RICO cases, a rush to see which of the alleged anti-democratic co-conspirators can cooperate first.

I called up University of Michigan Law professor and former federal prosecutor Barbara McQuade and asked her what to expect as Fulton’s coup conspiracy case heads to trial.

The last time we talked was back in March, 2022, when everybody was wondering if Merrick Garland even had the stomach to prosecute Donald Trump.

Yeah, a lot has happened since then!

Mark Meadows has already asked to remove his Georgia case to federal court. How does that affect the interplay between the Georgia case and the federal coup case?

It may be that other defendants who were federal officials at the time will join him. Donald Trump and Jeffrey Clark may have an argument, though I don’t know if it is a winning argument, that their case should be heard in federal court. The test is whether they were acting within the scope of their official duties when they committed the alleged conduct. My guess is that Fani Willis will argue that they were exceeding the scope of their authority when they engaged in this conduct, and therefore the cases should remain in state court.

Isn’t there a risk that evidence in the federal case clashes or undercuts evidence in the Georgia case?

Absolutely. I think the interplay between the federal election interference case and this case, is that you could see a conflict in witness testimony and cooperation. Any lawyer worth his salt is going to want protection for his clients in both forums. Mark Meadows is a prime example. The fact that he was excluded from the federal case made me believe he was cooperating there. But now we see him included in the state case, and that causes me to reconsider that conclusion. Because if he were to testify in the federal case in exchange for an immunity agreement from the federal prosecutors, that would not necessarily have to be honored in state court. So he would say, “I don’t want to testify at all.”

So you’re skeptical that Meadows was cooperating at all because he’s charged in Georgia, and he would have cooperated in both places?

It may be that he was gaming out that he would not be charged in Georgia. And so he was focusing solely on the federal case. And now that he has been charged in Georgia, it's not too late for him to decide to cooperate there. He may still do that. But it would seem odd to me that he would actually testify in one forum when he faces exposure in the other.

Trump is charged in both places, but what about others who could be? John Eastman, Rudy Giuliani, Ken Chesebro, Sidney Powell, Jeffrey Clark… they’re not charged in the federal case, yet. How does being charged in Georgia affect their incentives to plead guilty, or not?

If I’m the lawyer for one of those defendants I really want to get a global resolution here. And that’s going to require coordination between Fulton County and the Special Counsel. As a defendant I want to resolve my case, but I want to resolve all the cases. It doesn’t do me any good to plead guilty and work with Jack Smith only to get hit hard in the other forum. So what can you promise to do for me? And sometimes, when people come to cooperate late in the game, prosecutors say, “no thanks, I’ve got all the evidence I need.” So the best time to cooperate is usually before you get charged with a crime.

How quickly would you expect the 18 co-defendants in Georgia to start clamoring to explore a deal?

There’s often value in being the first one in the door. But not every one of these people is going to know a lot about the heart of the investigation. This enterprise starts at the very top (with the President of the United States), it has some mid level people and then it goes all the way down to lower level people. Those are the people who are fake electors or those who tried to intimidate Ruby Freeman. Some of them may believe they’re innocent and want to go to trial. But the sooner you get in the door, the better the deal gets, because as time goes on, the prosecutor is more likely to say, “look, I got 18 other people who’ve already pled guilty, you don’t add much value to me.” It’s best to get in the door fast.

Speaking of deadlines, how do you rate the chances that Fani Willis gets her March 4 trial date that she’s requested?

I think it’s a fine place for her to start, but I think it seems unlikely that it will really go on March 4. With 19 defendants, that’s a lot of discovery. That’s a complex case. They may set that as an initial trial date, just to keep the heat on, and I imagine that some of those 19 will plead guilty. But it appears at least some of the defendants are going to trial. They could break down into smaller groups of 5 or 6 who are tried together. But trial dates are made to be broken. The RICO cases I've had a chance to handle in my career have taken years, not months.

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Fani pack

As Barbara McQuade said, RICO conspiracies really draw a crowd! Getting a trial date on March 4 is likely to be aspirational for Fani Willis, given that she’s got 19 co-defendants and 30 (!) unindicted co-conspirators.

Speaking of, here’s a great list of the identities or probably identities of those 30. They range from the Trumpists you know, like Boris Epshteyn and Mike Flynn (maybe) to a bunch of lesser-known fake electors, campaign operatives, and others.

One of the higher-profile people on there is Georgia Lt. Gov Burt Jones. Willis was blocked from prosecuting Jones on conflict of interest grounds; she co-hosted a fundraiser for Jones’ Dem opponent in the 2022 midterms. Now Georgia’s Prosecuting Attorneys Council is getting ready to appoint a special prosecutor to see if Jones, like the other non-cooperating fake electors, merits charges.

How about never, is never good for you?

Jack Smith designed his federal coup indictment for speed, and has already requested a trial date of Jan. 2, 2024. Donald Trump’s counter-offer? April, 2026. Conveniently, that’s after the statute of limitations likely has run out all of his co-conspirators! US District Judge Tanya Chutkan’s scheduling hearing is set for Aug. 28. Cable’s having fun.

Tell overture

You’ve probably heard that X, when it was Twitter, went to the mat to be able to tip off Donald Trump that Jack Smith was sliding wayyyy into his DMs. It was all part of the legal battles over a search warrant for Trump’s Twitter activity the Special Counsel sought and secured back in January.

So, while Elon Musk was fighting to alert Trump, why was he simultaneously meeting with Jim Jordan and Kevin McCarthy?

The violence section

What’s the big deal if Trump intimidates witnesses or makes references to violence as he rails against judges and prosecutors?

By now you can set your watch by the threats that fall on anyone whose civic or professional duty involves making Trump accountable. In Georgia they publish grand jurors’ names once an indictment is issued, and it took about a day for the doxxing and violent intimidation to begin.

Meanwhile, Judge Chutkan hasn’t even scheduled Trump’s trial in the federal coup case yet, and already a Texas woman has been arrested for threatening to kill her. Abigail Jo Shry, of Alvin, Tex., was charged after threatening to kill Judge Chutkan, Rep. Sheila Jackson Lee, who is also Black, and “all Democrats and all people in the LGBTQ community.”

“You are in our sights, we want to kill you,” Shry said in a voicemail left at Chutkan’s office in Washington, according to a criminal complaint.

Groundskeeper wily

Carlos De Oliveira, the Mar-a-Lago property manager and Trump’s co-defendant in the “cover-up of the cover-up” portion of the classified records case, finally has a lawyer, and was finally arraigned.

De Oliveira pleaded not guilty to four counts of conspiracy, obstruction, and false statements, after dragging his arraignment out for weeks. And just like that… prosecutors are raising concerns about De Oliveira’s attorney, John Irving. The issue is that Irving also represents three witnesses in the case, which could be a conflict of interest for De Oliveira. Prosecutors raised similar concerns with lawyer Stanley Woodward, who reps co-defendant Walt Nauta and also several witnesses.

Trying time

Former Trump advisor and unindicted coup cheerleader Peter Navarro tried, again, to delay his imminent contempt trial for snubbing January 6 committee subpoenas. It didn’t work, the trial starts Sept. 5.

Same goes for unindicted (federal coup case) and indicted co-conspirator (Georgia) John Eastman, who asked the California State Bar Court to delay his ongoing disbarment trial, arguing his criminal troubles could prevent him from mounting a strong defense as he fights to keep his law license. The court denied Eastman’s application, and the trial, held over from June, is set to resume next week.

Going long

Federal prosecutors are aiming way over the horizon for Enrique Tarrio and other Proud Boys convicted of seditious conspiracy. The feds are asking the judge for 33 years for Tarrio and Joseph Biggs, and 20 years for Dominic “Spazzo” Pezolla, who was acquitted on sedition but convicted of a bunch of other charges.

And DOJ is seeking one of its longest sentences yet for a Jan. 6 rioter at a hearing scheduled for today. The government is asking a judge to sentence convicted Proud Boy Chris Worrell to 14 years for assaulting officers, profiting off of his pre-trial detention, perjuring himself at trial, and showing no remorse for the whole thing. Worrell’s lawyers are asking for 30 months home confinement. .

Crimson chide

Alabama Republicans’ attempt to defy the Supreme Court’s order that they expand Black voting power in the state’s congressional districts was back in front of federal judges Monday. It all comes from Allen v Milligan, an opinion earlier this summer where the justices backed up the lower courts in telling Alabama GOP’s that their single majority-Black district violates the Voting Rights Act.

Alabama lawmakers responded by tinkering with their map, but decidedly not creating a second Black-majority district, or one close to a majority, as the courts had ordered.

Judges seemed skeptical on Monday of the legislatures’ intentions, and their contention that they couldn’t fully obey the courts without violating the Constitution. (It was either that, or another riff in Alabama’s long history of defying courts and disenfranchising Black voters.) The case could be headed right back to the Supreme Court, but the map has to be settled by October if it’s going to be used for the 2024 election.

Cal. rippin’

It’s getting wild in Shasta County, Calif., where GOP officials spent $1 million of taxpayer money to replace Dominion voting machines, and now the voter fraud seems to be popping up elsewhere.

“You can quote me to say, ‘they’re f-----g thrilled.’”

— Veteran mob lawyer Murray Richman, asked how his clients feel about former U.S. Attorney and O.G. racketeering prosecutor Rudy Giuliani being charged with RICO violations in Georgia.

Planet Reno — Nevada has its own Mike Lindell, and he can’t stop, won’t stop, using his millions to push stolen election claims in the courts. Robert Beadles, a wealthy ex-construction firm owner and congressional candidate, was threatened with sanctions for using lawsuits to harass officials and tie up courts. He withdrew one federal suit this week but says he’s headed back into state court to prove election fraud even Trumpist GOP state officials don’t buy.

Vos deference — Now liberals have won control of the state Supreme Court, and now that a lawsuit challenging the GOP’s years-long gerrymandered stranglehold on district maps is in play, Republicans are prepared for a legal fight on the merits. Psych! GOP Senate leader Robin Vos is threatening to impeach the newly elected liberal justice who ran on the argument that the maps are unfair.

Three out of four ain’t bad — “I voted for you. I worked for you. I campaigned for you. I just won’t do anything illegal for you.” That’s former Arizona GOP House Speaker Rusty Bowers getting all Meatloaf on Donald Trump, during one of Trump’s overt acts in furtherance of the conspiracy alleged in the Fulton County indictment.

Just desert — First the fake electors in Michigan, then Georgia. Could Arizona be next?