I’m not sure too many people have noticed this: In the Georgia criminal prosecution of Trump and his allies, Trump alone might stay out of jail. If the defendants other than Trump lose at trial, they’re going to prison. If Trump loses at trial, he may not go to prison. As a criminal defendant, that changes the way you think about things.
If Trump wins the election in 2024, Trump could argue that criminal cases in state court can’t proceed against the president. If he wins that issue in court, he stays out of jail (for at least another four years). If he loses that issue in court, Trump might nonetheless strong-arm the Republican Georgia state legislature into passing a law that says that, although Georgia could maintain a criminal prosecution against a sitting president, Georgia chooses not to. The Georgia legislature could compel that the charges against Trump be dismissed. Trump can thus afford not to plea bargain; he’s got a possible escape hatch. All he has to do is win the election.
Not so for any of Trump’s co-defendants. The Georgia case is, of course, proceeding in state court, so, if Trump wins the election, he lacks power to pardon his co-defendants. And the co-defendants have no other route to safety. If, say, Mark Meadows or Rudy Giuliani were convicted, there’s no argument that prosecuting them isn’t allowed, and the Georgia legislature wouldn’t pass a law to help them.
So what’s likely to happen in Georgia, now that Sidney Powell and Kenneth Chesebro and Jenna Ellis have pleaded guilty and committed to testify against the others?
One by one, as their trial dates approach, most or all of the other defendants will plea bargain. Better to spend no, or little, time in jail under a plea agreement than to roll the dice with an Atlanta jury and risk spending a big chunk of your life behind bars.
Trump, however, probably won’t plead guilty. It’s not his nature, and he alone has the possible escape hatch — he alone could win the 2024 election and thus possibly avoid prison.
And what do you think Trump will say as all of his co-defendants turn against him?
That’s the funny part.
For years, liberals have complained that the criminal justice system is unfair. Prosecutors, liberals said, have threatened poor Black defendants with decades behind bars, and the defendants have been coerced into pleading guilty to lesser crimes. The defendants couldn’t risk the long prison terms they’d face if they gambled and lost with a jury.
Nonsense, said conservatives. The system is entirely fair, and the thugs deserved the prison time they pleaded to.
The shoe’s now on the other foot, and I predict that Trump will shortly change his tune.
Come about March, Trump will announce: “The only reason all my co-defendants have pleaded guilty is because the prosecutors charged them with serious crimes, and a crazy Atlanta jury might have convicted them! If the system were fair, prosecutors wouldn’t have charged them at all, or would have charged them only with less serious offenses. Everyone’s been coerced into saying that they’ve done something wrong and into testifying against me!”
I can’t, of course, predict which words Trump will put into ALL CAPS!! I can’t predict his grammatical errors or other attacks on the jury system.
But my crystal ball is absolutely clear on one point: Virtually all defendants in the Georgia case other than Trump will plead guilty and testify against Trump. And my crystal ball is reasonably clear on a second point: Trump will then be shocked — shocked!! — to realize that the over-charging of defendants is a grave injustice.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.