Trump’s New Legal Peril
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Hi, welcome to another episode of Prosecuting Donald Trump. Today is Monday, October 23rd. I'm Andrew Weissman. I'm here with my fabulous co-host, Mary McCord. We're going to cover so much that happened last week, but the main event is what happened in Georgia with Sidney Powell pleading guilty on day one, and then on day two, Kenneth Chesbrough pleading guilty. And

We really want to spend some time talking about that. And we talked briefly beforehand, Mary, about that because we were prosecutors for so long, we want to make sure people understand why we are hesitant to make a lot of the conclusions that we're seeing in the coverage about it and to give people a sense of what's going on in our heads, give you tools, and then you can make your own judgment about what's going on. But that's going to be the main part of what we talk about.

Yeah. And just to remind everybody, you know, Sidney Powell and Kenneth Jespro, both lawyers, both people who were associated with Trump and his campaign and the efforts to not only bring lots of lawsuits challenging the results of the 2020 election, but also to come up with the fraudulent elector scheme. And in the case of Sidney Powell, to actually challenge

seek to seize voting machines from Coffey County, Georgia, ostensibly to use these to substantiate her claims of a stolen election. Now, interestingly, over the weekend, Mr. Trump has been putting out social media posts claiming that Sidney Powell was never his lawyer. So we'll talk a little bit about what that means and what we can expect for both the Fulton County case going forward and the federal January 6th related case.

Yeah, what's so fascinating about that attorney-client piece is something that got very little news was that Judge McAfee, the state court judge, just prior to Kenneth Chesbrough pleading guilty, actually issued an opinion about the attorney-client privilege, or should I say lack thereof, with respect to Kenneth Chesbrough. So that'll be sort of an interesting data point in evaluating the

recent hullabaloo about Donald Trump's statements about Sidney Powell. That's right. And we'll also turn, of course, to the two quote-unquote gag orders last week, Judge Ngoran in Manhattan. Sorry, Mary, we've been beaten to a pulp. Yeah, I know. We've been beaten down on gag order. Right. I want to say bail restriction. Yeah, I still fundamentally reject it, but everyone else, that's like the trigger words that they understand. So we're capitulating temporarily, right? Right.

So Judge N. Gorin, of course, issued a $5,000 fine against Mr. Trump for violating his order. And Judge Tanya Chutkan in the District Court for the District of Columbia issued just an administrative stay on her order while Mr. Trump appeals. We'll talk about that and what that means. And then finally, we're just going to briefly note that

The government's brief has come in now in D.C. about Donald Trump's claim of presidential immunity. And we're just going to flag that. We're going to do a deeper dive. But that is such an important issue. It's not decided by the Supreme Court. It's the one thing, as we've talked about, that could potentially delay the March 4th D.C. trial. So we're going to just

flag that for you. But let's jump right in because this is one where I was just listening to so much news about, oh, look, there are two cooperators. This is so great. You have Sidney Powell and Kenneth Chesbrough cooperating in Georgia. They could be cooperating now in the federal case. What does this mean for Donald Trump? Do they have direct evidence? Do they have direct evidence against other people? And on air, I kept on going, wait, wait, wait, wait, wait.

So I think a good way to start this conversation is I'm going to go through, in general, what a cooperation agreement looks like, a cooperation agreement with respect to a charged defendant who pleads guilty, what that looks like sort of in a standard federal case. And then, Mary, can I turn it over to you to maybe talk about how that compares to what's going on here? And then we can give our assessments of what's going on here.

What do you make of all that? Does that make sense? Yep. Okay. So let's start with, at the federal level, there is a wide variety of how cooperation agreements read because there are many, many U.S. Attorney's Offices around the country, I think 93, and there isn't sort of uniformity. But let me give you general outlines. Generally, somebody who has been charged with a crime who wants to cooperate with

They come into the government with their defense counsel and they reveal over multiple sessions with the government information that they have

and could offer. It's usually done with some limited protection for those discussions. But essentially, the government wants to not buy a pig in a poke. They want to understand if they are going to have somebody as a cooperator, what could they say? And also, do they think the person is being truthful? And very often, the person is not being truthful immediately, and it's a work in progress. I've been on the defense side of that as well. And that's sort of a standard

part of the process. Then the person typically has to plead guilty to what they did. Sometimes it's all of what they did, sometimes it's part of what they did. Different offices have different practices, but they plead guilty and they then are not sentenced immediately. They then testify if called at a trial. And before that, they are meeting with the government, they're being prepared.

The government has a really good sense of what they know from all of the meetings before they've pled. And they're called as a witness. And this happens in Enron. It happens in organized crime cases. It happened in the special counsel Mueller cases. Mm-hmm.

And the person testifies at one, two, sometimes many, many trials. And then ultimately they're ready for sentencing. And at sentencing, the government stands there and says, this is all the bad that the person committed and did. And this is all the good. And the good meaning this is all the ways that the person was helpful at trial. And the judge then decides how much credit the person should get

based on their cooperation, their acceptance of responsibility, that's usually very much left for the judge. In some districts, by the way, the prosecutor recommends a sentence. Other districts, they don't. But either way, the judge decides what they should get after all of that cooperation happens.

Oftentimes, this will also include the prosecutor filing a letter to the judge showing the substantial assistance of the defendant in the case. And that's something that is necessary, you know, in order to depart sort of below not just the guidelines, but sometimes even what the statute might require. So that's a big part what defendants in federal criminal cases are looking for the government to file that motion at the end of the

period of cooperation saying the defendant substantially assisted and therefore he should get a break in his sentence. Okay. Insider tip. That's what's known as a 5K letter. It refers to a sentencing guideline provision that allows the government to file this motion that allows the court to depart from the sentencing guidelines. Frankly, the court could depart anyway. Right. But

You will occasionally hear the term, oh, they filed a 5K letter. Obviously, by the way, in this whole process, the defense gets to be heard. The defense files things and talks about how great the person is, etc. And so usually a cooperator who has been a successful cooperator, who the judge believes has been truthful, gets a sentence that's

below what the sentencing guidelines call for. The whole idea is that the person's getting a sentence that they otherwise are not entitled to or merited, given their crime, because of the benefit they provided to the government. So you don't get that usually up front. You get that at the time of sentencing, and there usually can be a substantial time between the guilty plea. It can be years sometimes. Yes, exactly. Yeah.

So that's sort of the big picture of the federal system. And Mary, I thought it might be useful for you to describe what exactly was the agreement in the state system. And I don't mean that to say like the state system's good or bad and the federal system's good or bad. It's mostly to understand what are the differences that we're seeing, because it will help, I think, people understand better.

at least on my part, why I'm reluctant to view these people as cooperators. Yeah. So I think one of the major differences here that could be driving why these proceeded under a different path than what you just laid out, what's common in the federal system, is because both defendants were able to plead under an agreement with the state that this would be under Georgia's first offender act.

And it's not entirely clear to me, since I'm not an expert in Georgia procedure, whether these pleas might have been done. I mean, they clearly would have been done somewhat differently, but whether there would have gone to sentencing at the same day as the plea if these had not been under the Georgia First Offender Act. But just to back up for a minute, in both cases, Sidney Powell and Kenneth Justbroke,

Both were, again, under the Georgia First Defender Act, which allows a defendant to plead guilty if it's their first offense they've ever been charged with or convicted of, plead guilty, be sentenced to a term, in this case, of probation, and then if they successfully complete that term of probation—

they will actually be exonerated of guilt and their guilty plea will essentially be discharged so they no longer have a criminal conviction. In addition to probation, and again, we should have made this clear, Sidney Powell pled guilty to six misdemeanors. So even though she was charged with felonies, she was allowed to plead guilty to misdemeanors. Kenneth Jesbro pled guilty to a felony, but

In both cases, the government agreed to and the judge sentenced to probationary sentences. So no jail time. On the same day as the plea? On the same day as the plea, in the same proceeding. And these proceedings were only about 20 minutes long. Both did have two other significant provisions. And these are the provisions that I think so many people have been focusing on, that they will testify truthfully in any proceedings in which the state calls them.

that they will provide additional documents at the state's request, documents and information that could be emails, not necessarily documents, that they will give proffered statements of what they are offering up as the information that they have that the government could seek to call them to testify about, and that they are not allowed to talk about documents

the substance of the charges against them, like the substance of what they would testify to or talk to any other defendants until the case is finished. So, Mary, to me, the key here is not that you testify truthfully, because frankly, anybody who is called to this stand has to testify truthfully and there are penalties if you don't. I think there's sort of two aspects to this. One is

Because they are both now on probation, it is a condition of probation that they testify truthfully. So unlike other people who could be criminally prosecuted for perjury if they testify falsely, here it can be a violation of probation. And that means they would lose their deal. Yes, exactly. So there is this added pressure on them if they testify in. And remember, it's only in state court that they're required to testify truthfully under this prohibition.

provision. And so the key to me is what exactly is in those statements that they gave that we don't know? And to me, that's the main issue, because normally it's not just one statement. It's a whole range of things. And you've got to meet with the prosecutor,

over and over again at their discretion to prepare and be fully debriefed. And it would take quite some time to get all of that information. One short written statement wouldn't be enough. What I'm concerned about is you worry about what's the downside. Obviously, the upside is that they've given fulsome statements that expose all of the criminality. Then there's no issue. Then it's true that they're cooperators. But what I'm worried about is

Sidney Powell could say, yes, I was breaking into these machines. It was part of that scheme to break into machines. But I did it because I thought there was actual fraud in the election. I still think there's actual fraud in the election. But my bad was that I did it through the improper means. And she doesn't implicate anybody in sort of a larger scheme, the false elector scheme, any of the things that are the subject of, let's say, the D.C. January 6th case.

So that's why all of this back and forth recently about whether she was acting as a lawyer for Donald Trump or not seems a little bit of an aside to me, because it's only relevant if those conversations actually have incriminating value. And others, what do we know about those conversations that could be helpful to any of the criminal cases? Would they be covered by privilege?

Is she going to be providing information or somebody else providing information about those conversations? And obviously, if she's not acting as a lawyer, there can't be attorney-client privilege. But even, by the way, if she was acting as a lawyer, the crime fraud exception could apply. And that's where Judge McAfee actually found, with respect to Kenneth Chesbrough,

He wrote a decision that said, "I'm not sure Kenneth Chesbair was acting as a lawyer in this capacity, but even if he were, I find that the Georgia state has established to the required level of proof," which as he said is relatively low,

that there is the crime fraud exception. Andrew, I guess there's one way I'd look slightly different at that is that I agree. We don't know what's in that statement. We know that by the time the plea was taken, the statement had been given, the recorded statement. I'm not talking... The part I left out of this plea agreement is they were both required to issue apologies. Frankly, I think that could be just totally self-serving on their part. I would not have included that. But at any rate, we're talking about the...

recorded proffers. We know that by the time the pleas were taken in court, those recorded proffers had been given because the assistant district attorney said so on the record. So they already know what's in there. But even if she didn't cover anything in her statement that would have to do with any sort of advice to Mr. Trump, let's say it was just all about Coffey County.

That doesn't mean that him now claiming that she was never his attorney couldn't come up in another fashion. In other words, the Georgia prosecutors aren't necessarily limited during trial in asking about conversations that she may have had with Trump or those who were close to Trump, even if it's outside the scope of her recorded statement. And certainly Jack Smith is not limited in what he can ask if he were to call her as a witness or just to call other people

who were privy to those conversations between Sidney Powell and Trump or people close to Trump who went ahead and said them to Trump. So I still think there's a lot of room for litigation here because if Trump does seek to rely on advice of counsel defense, either from counsel from Sidney Powell, counsel from Kenneth Chesprow, John Eastman, Rudy Giuliani, and in fact, that is something that's already been teed up in the January 6th federal case. The government has moved

to require Trump to give notice if he's relying on a vows of counsel defenses so they can do things like exactly what we're talking about, dig in to figure out who was actually acting as attorney pursuant to what kind of agreement. Was there a retainer agreement? What does that paperwork look like, et cetera? They want to be able to dig into all of that. Trump has come back and said, well,

We don't have to give you notices of our defenses this early, two and a half months out of trial. We understand there would be some things that you might need to know if we're raising advice to counsel. But at most, we would do that right before trial. Actually, they say they want to wait until the government starts putting on evidence. So that's an area being litigated. And the point I think that you and I are in agreement on is that whatever Mr. Trump is saying right now in social media about whether

Sidney Powell is or is not or was or was not his attorney. That's all stuff that can be litigated and will be litigated if there's an effort to, you know, kind of peek behind any type of attorney-client privilege, I think. Yeah. One other thing that we haven't really touched on, which gives me some pause as to whether there's

full cooperation by Sidney Powell and Kenneth Chesbrough in light of these differences in terms of how the agreements work, where they have gotten a lot of the advantage of their agreement right now because they're getting a no jail time, please, but they do have to testify truthfully. So, you know, they're playing a dangerous game if they were to go and lie. Is that

It's so unusual to have state pleas when there's pending federal exposure. So both Kenneth Chesbrough and Sidney Powell are widely reported to be unindicted co-conspirators in the federal D.C. case.

Any good defense lawyer, and I've been a defense lawyer, I can't say I've been a very good defense lawyer, is going to try to have a global resolution. Because if you were to say something in the state case that could be used by Jack Smith in the federal case,

You're exposed. And you have a Fifth Amendment right not to do that, right? You have a Fifth Amendment right not to incriminate yourself. Yes, but now you've got an agreement that says you will testify at the state level. So you're going to kind of be betwixt in between because are you going to violate your

obligation to testify truthfully? Are you going to argue, well, I'm going to testify truthfully except when I take the Fifth Amendment in the state court? I don't see how their attorneys could have negotiated anything else without a global plea agreement. Right, exactly. Otherwise, they would not be providing good representation to their clients. And we know as of today, there is no global agreement. And the reason we know that is that one of the questions that the judge asked

during the plea allocution is, have we set forth, Ms. Powell, have we set forth, Mr. Chesbrough, all of the agreements that are leading to your pleading here? And they all said yes, because you want a record of exactly why someone is pleading. You want to make sure there's nobody who comes in later and says, wait a second, I got all sorts of promises that weren't recounted in court. So we know that some part of this wasn't a federal agreement. And

It's also the system is so different that I think it would be hard to see Jack Smith because of what we started out by talking about how the federal system works. I think it would just work very differently. And I just want to give one big picture thing. And Mary, I don't know how you think of this, but I think if Sidney Powell and Kenneth Shesborough are fully cooperating, let's assume the most optimistic, if they are cooperating,

then I'm not sure I would do it, but I'm certainly not going to second guess the deal they got, which is no jail time. I think the crimes they committed are incredibly serious. They go to the heart of our democracy. So you would think long and hard before reaching that plea disposition. But that's assuming they're fully cooperating. If they were not fully cooperating, if this was something where they're only giving sort of narrow slivers

then I have trouble with a resolution where people who did something that was this bad are not doing gel tongue. That's my normative assessment. Yeah. And I think also, you know...

Because they are not serving any jail time, and at least in the case of Sidney Powell was given misdemeanors, I mean, it opens up an argument that these are not serious offenses, right? Because they pled them out to misdemeanors, at least in the case of Sidney Powell, and even with respect to Mr. Chesbrough.

probationary sentences. And I agree with you. I think these are incredibly serious crimes. In fact, I find their ability to take advantage of the First Offender program a little offensive. I mean, it has carve-outs for sexual crimes and crimes including elder abuse and assaults on police officers where you can't get First Offender. But I feel like these two people, lawyers of all people, committing incredible fraud here on the

entire electorate of the United States, it a little bit irks me that they get the benefit of a law that was clearly

brought about to try to reduce sort of the carceral state and give people second chances, oftentimes people who, because of their own personal circumstances, got involved with crimes maybe even early in their life. So that's a whole other topic. Last thing I would just say before we move on is that to your point about worrying about how fulsome these proffers might be and how fully they're cooperating,

Mr. Chesbrough, I went back and re-listened to it after the government, meaning the state of Georgia, proffered the facts that they would have proved if they'd gone to trial.

That judge then asked Mr. Chesbrough, do you agree that there's a factual basis for your plea? And he said, as to this charge, yes. Now, mind you, he pled guilty to one charge of the multiple charges he had been indicted with, and this was for conspiracy to commit a false filing, that being the false suing.

And so he was clear he was not admitting to a RICO conspiracy. He was not admitting to anything else, at least based on his words. And his attorney has since then said that he was not admitting to a RICO conspiracy.

said that and really has also said Mr. Trump has nothing to worry about based on Mr. Chesbrough's proffer. So he could be bluffing, that's Mr. Chesbrough's attorney, about how fully Mr. Chesbrough is cooperating. But both of those things raise some little red flags for me. Yeah. And I do think just a point that you made, which is that it doesn't signal how significant these crimes are

That's not going to particularly help when you're thinking about the import of this case to the election, to Donald Trump. It starts making it look more like the New York criminal case, for instance, the Hush Money case, where it's somehow not as important when this, I think, is the most important case. More prosecuting Donald Trump, Trump's new legal peril in just a moment.

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So there was actually more going on than just this, which is we have Judge Angoran actually issued a $5,000 fine. Now, what happened here is that he had ordered Donald Trump and his team to take down the post about his law clerk,

And it was removed from social media, but it wasn't removed from the Trump website. So that was an oversight. Trump's team said it was inadvertent. I mean, let's assume it was inadvertent. It probably was. But it also shows they weren't careful.

Yes, exactly. Right. It's just like, Mary, you and I, if a judge ordered us to remove something, you'd figure out where is it and how do we take all these steps. So this is like the bare minimum fine in my view. But Judge N. Gorin did say in his written decision, essentially, you are on notice that the next time, I don't care whether it's intentional or not, this could lead to all sorts of sanctions up to and including jail. Right.

At the same time, we also have in D.C., the D.C. judge has, as you mentioned, stayed her decision because Donald Trump is appealing the decision, which is his right. And she's getting papers from both sides on whether that stay should essentially last for the whole length of the appeal or whether she's going to just

say, no, it's in effect right now. Regardless of if she says, I'm not going to stay, Donald Trump could still ask for a stay from the Court of Appeals. I think the thing that's so notable to me is that right now, her decision is

She has stated. And over the weekend, Donald Trump has started to attack various people, including saying that Jack Smith is, quote, deranged, unquote. Now, if her order was in effect, then...

that would be a violation. But it's interesting to me because it shows to me that he actually is careful and that he is watching to see what he can and cannot do. I'm going to be like out on a limb here. I actually think these orders will have an effect because even though the Trump card, pun intended, he likes to play is that I'm a victim and this is all the Biden administration, blah, blah, blah, blah, blah. He doesn't want to go to jail. He doesn't want to go to jail. That's what I think. That's right.

Now, you might have thought that he wouldn't be doing it at all, even though the order was stayed. But I think you're right. He knows it was stayed. And just to make crystal clear, because I know we talked about this last week, this is just a stay of her limited time.

quote unquote gag order. This is not a stay of the case. The case moves forward. And I think it's because, you know, First Amendment rights are implicated here. I think Judge Chuckkin thought, you know what, I'll grant this administrative stay while you go up to appeal, meaning I could still decide later, like you said, whether to stay my order for the entire appeal or just leave it for the

Circuit to make that decision. And they did file their notice of appeal. So this will be getting briefed in the appellate courts. And we'll have more discussion about this after we see that briefing. Exactly. So, Mary, take it away on presidential immunity. I know that we got a filing from Jack Smith's office. You can be pretty sure the Solicitor General's office must have weighed in because this is something that I think is pretty clearly going to end up in the Supreme Court. So what do we need to know

understanding we're just doing a table setter on this, and we'll get into a deeper dive later. So listeners may recall that a few weeks ago when we were up at NYU, we had the former dean and a constitutional law scholar, Trevor Morrison, join us. And that was before

Trump had actually even filed his motion to dismiss the case, dismiss the entire case on the grounds of absolute presidential immunity. And at that point, we kind of speculated about what the arguments might look like. And I think it was either one or two days later, Trump actually filed his motion, which we talked about last week or the week before in some detail, arguing about why his conduct could not be prosecuted because it was all part of his essentially his official duties.

The government has now filed its opposition and the government has come in and we talked at some point, I think both with Trevor Morrison and among ourselves, Andrew, about a case called Nixon v. Fitzgerald, which involved civil immunity from civil litigation for Americans.

a president based on conduct within the outer perimeter of their official responsibilities done while in the presidency. And that's sort of the law that we have out there. And we kind of all speculated that something kind of like that would get applied even to a criminal litigation. But the government has come in strong and said, no, no, there is no place in the Constitution where

where any immunity is provided to the president, unlike, for example, speech or debate clause, which provides immunity in certain circumstances for members of Congress, criminal immunity from criminal prosecution for things that they do that relates to their conduct on the House floor or going to and from the House floor.

It's not found in the Constitution. And this law about immunity from civil liability, that's based on different considerations that aren't as significant as criminal considerations. And there's just no such thing as absolute immunity. I thought some of the most, in many ways, persuasive and just sort of jaw-dropping things

argument that the government made was when it was trying to express how defendant Mr. Trump's argument would go too far. And it talks about in the defendant's view, the court should give the president absolute immunity from criminal prosecution as long as whatever their president is doing is, you know,

In the form of a statement on a matter of public concern or a meeting with a member of the executive branch or correspondence with a state official about a matter in which there's federal interest. And remember, we talked about how Mr. Trump's attorneys had tried to take his conduct up.

to this incredibly high 35,000 foot level of generality and pretended like all he was doing was making phone calls and talking to state officials and talking to people and kind of left out the entire fraud aspect of it. But what the government comes back and says is the

implications of defendants' unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member, a president who instructs his FBI director to plant incriminating evidence on a political enemy, a president who orders the National Guard to murder his most prominent critics, or a president who sells nuclear secrets to a foreign adversary. And I think that list of sort of

hypotheticals, hopefully all hypothetical, is really sort of pretty illustrative of the breadth of Mr. Trump's argument. And so I look forward to seeing how this plays out. There's much, much more to this that we will spend a lot more time talking about on a future episode.

But I don't know what struck you. No, no, I'm going to leave this for later with one quick observation since I'm old, which is I still remember the interview that Richard Nixon gave to David Frost after he stepped down and resigned from the presidency, where he basically said on air, response to a question, but if the president does it,

It's legal, which, you know, is... That's essentially what the government is saying, yeah. Yes, yes. Well, they're not adopting that. They're saying that's what the defendant is saying. Yeah, that's what Mr. Trump is saying. Which their French is, l'état c'est moi, which was a phrase from a 17th slash 18th century French king, which is what we were trying to get away from. So that's just not the rule here. So, you know, I think this says no chance in hell, right?

That's my legal assessment at the district court level where Judge Chutkan has already said that we don't have kings here and that they're not above the law.

So, you know, but this obviously has a long road ahead in terms of the D.C. Circuit and potentially the Supreme Court. Mary, so much more to cover. What I'm really fascinated to see is how the whole Sidney Powell-Chesbury thing plays out, because even in my pessimistic view, they're playing with fire in terms of how they would navigate their testimony at any trial so that they're not found to have lied. So it is complicated. Yeah.

And there's definitely going to be more to this story. And I kind of hope I'm wrong and that they are fully cooperating and that they're in sort of that easy bucket. But we'll see. We'll see whether Sidney Powell even gets called, because honestly, you know, this is a woman who talked about releasing the Kraken. I mean, this is a woman who got up and just lied blatantly to the American people. So the idea of putting her on the witness stand, you know, you and I've talked about

similarly about Rudy Giuliani. This is a person who lied, lied, lied. And it's tough as a prosecutor to put somebody on the stand who's engaged in so many lies. I've put Sammy Gravano on the stand. And, you know, he participated in various murders as the underboss of the Gambino family. He also admitted to committing perjury. So, you know, it's... It's about how they explain themselves. Yep. Exactly. But obviously, it's not ideal. Yeah.

There's a lot of baggage. So much more to come. Love talking to you. Yes. See you soon. Okay. Bye. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.

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