UPDATE (Oct. 19, 2023, 10:15 a.m. E.T.): On Thursday morning, Sidney Powell became the second Trump co-defendant in Fulton County to take a plea deal. The deal was for six misdemeanor counts, suggesting prosecutors believe her cooperation is valuable.
One of the questions that should be keeping former President Donald Trump up at night is who among his co-defendants in Georgia will flip and testify against him. So far, only one of Trump’s 18 co-defendants has pled guilty: politically well-connected Georgia bail bondsman Scott Hall, whose brother-in-law was Trump’s deputy campaign manager in 2016. To date, Hall is the only Trump co-defendant whose plea deal and cooperation agreement with prosecutors is public. (They have agreed to dismiss some of the charges and recommend a reduced sentence of five years’ probation). But there could be others coming.
Reporting from earlier in October confirms that Fulton County District Attorney Fani Willis offered cooperation agreements to an unspecified number of other co-defendants in the case, all of whom will have to decide whether a deal like the one Hall received is a better option than going to trial. There are only so many sweetheart deals to go around; prosecutors’ need for witnesses on any given point is limited. And typically, those defendants who are “first in” get the best deals.
There are only so many sweetheart deals to go around; prosecutors’ need for witnesses on any given point is limited.
With their trial slated to begin on Oct. 23, former Trump attorneys Sidney Powell and Kenneth Chesebro face this decision with some urgency. One of the prosecutors on Willis’ team told Judge Scott McAfee that the prosecution was potentially willing to offer deals to both Powell and Chesebro. Hall’s deal is very good, meaning he must be giving prosecutors something very good in return. For example, he may have to testify against a co-defendant, and Powell is the most likely target — they were both charged in connection with the alleged plot to access voting machines in Coffee County, Georgia, on Jan. 7, 2021. Does Powell want to risk a sentence of five to 20 years in a Georgia state prison? Or might she decide it’s time to cut her losses and testify to what she knows about Trump?
Prosecutors usually start their dealmaking with the least culpable participants in a conspiracy. They flip these smaller fish in exchange for help making a case against the person above them, until they reach the person or people at the top. The highest value co-defendants can provide prosecutors with unique access to the people in charge of a criminal conspiracy. Powell and Chesebro were literally in the proverbial room(s) where it happened. Powell, for instance, attended the contentious Dec. 18, 2020 Oval Office meeting when it was suggested she be appointed a special prosecutor to investigate election fraud. Chesebro authored the original plan for the fake elector scheme. Their testimony, if they were willing to be truthful and proved credible, could be a real asset for prosecutors.
Presumably in this case, Willis and her team are not counting on any such deals; with stakes this high, these prosecutors would have believed their case against Trump was already airtight when they indicted it. But jurors like to hear from witnesses with firsthand knowledge who can explain what happened and how it happened.
Defense lawyers can attempt to undermine the credibility of cooperating co-defendants’ testimony, especially where it has been traded for favorable treatment. But prosecutors have a ready response. The fact that these witnesses aren’t altar boys is more a reflection on the defendant than the witnesses and the government. The defendant chose the witnesses. These are the people that he surrounded himself with.
And of course, prosecutors have to carefully corroborate testimony from defendants-turned-cooperators with documents, cellphone records, texts, emails, additional witnesses and other evidence. The deal that a cooperating co-defendant gets is contingent on their truthfulness, and prosecutors usually walk through that deal with the witness during their direct examination so that everything is clear to the jury before cross-examination. The witness knows that if they lie, the deal is off. Deceitful cooperators get exposed. The one person in the courtroom who is sure to know if they are lying is the defendant who is on trial and who can tip off their attorney ahead of cross examination. The risk to the cooperator of losing their deal and ending up worse off is not an empty threat. And prosecutors use this fact when they talk with juries about evaluating the testimony they’ve heard from the now-cooperating witness. Consider the congressional testimony of Trump’s former lawyer Michael Cohen or Mark Meadows aide Cassidy Hutchinson. They are textbook examples of witnesses who have been able to change their stories without losing their credibility. While most of the Fulton County defendants are keeping their own counsel for the moment, some have publicly rejected the notion that they could plead guilty. Lawyers for Michael Roman, Trump’s 2020 director of Election Day operations, seem to have overreached, demanding prosecutors dismiss all charges against their client in exchange for his testimony. His lawyers have since told reporters there is no deal. John Eastman’s lawyer explicitly said, “Eastman is not going to make a deal. He’s not going to offer to lie about somebody else in order to get out of trouble.” But I’ve seen co-defendants say these kinds of things before, sometimes right up until the moment they walk into court to change their plea to guilty. With the first trial in Fulton County just around the corner, there are likely a number of people deciding whether the moment has come to plead and cooperate. A recent study concluded that cooperation agreements fail for two main reasons: defendants who are unable to provide information that helps the case in a significant way, and defendants who are caught lying to prosecutors. Apparently, Scott Hall was able to convince prosecutors his information was both truthful and valuable. And it’s unlikely he’ll be the last co-defendant in Georgia to decide the government can prove its case against them and look to prosecutors for a way out. But the clock is ticking.
