Prediction: Sidney Powell won't be cooperating against Trump

Why Powell's plea deal doesn't help the RICO case against Trump

Today, Sidney Powell accepted a plea agreement from the Fulton County District Attorney, pleading to six counts of “Conspiracy to Commit Intentional Interference with Performance of Election Duties.”

Those are all misdemeanors. She faces six years of probation, a $6,000 fine, and has to pay $2,700 in restitution.

Call that a win for the defense. Here’s why.

Powell was indicted with seven felony counts: conspiracy to violate Georgia’s RICO (Racketeer Influenced and Corrupt Organizations) statute; two counts of conspiracy to commit election fraud; conspiracy to commit computer theft, trespass, and invasion of privacy; and conspiracy to defraud the state.  

These charges are felonies that carry heavy penalties. A conviction under Georgia’s RICO conspiracy statute, for example, requires a punishment of between five and 20 years of imprisonment. See Ga. Code Ann. § 16-14-5.

That gets us to our second point – the risk of conviction.

Let me start by saying that I believe Powell is innocent, that there was no RICO conspiracy by her or anyone else, that the indictment, along with all overt acts in furtherance of the conspiracy, is a joke. (More on the charged conduct and RICO below.) That this case never should have been brought, that it criminalizes political conduct. But I’m not a Fulton County juror. And you probably aren’t either.

When these cases go to trial (at this moment, nobody knows if Kenneth Chesebro will be offered, or accept, a plea deal or go to trial on October 23), the defendants will face a jury pool that is approximately 75% Democrat and only 25% Republican. The jurors will salivate at the chance to convict anyone associated with Donald Trump. We’ve seen it in DC with the January 6 defendants. We’ve seen it with the anti-Trump activist who lied to get on the Roger Stone jury. They’re not concerned about justice. It’s political.

Adding to the pressure is the cost and expense of trial. Back in September, the Fulton County District Attorneys estimated this case would take four months. There would be hundreds of witnesses, even before the defense got to their case in chief. That’s the type of trial that could bankrupt a defendant.

The Fulton County District Attorney knows that, and probably threatened the excessively-long trial to increase the pressure on Powell and Chesebro (the only two defendants who demanded a speedy trial) to accept a plea deal. It’s just another example of the unethical conduct of the zealous Fulton County prosecutors, who have engaged in very public evils from withholding exculpatory evidence from the grand jury (violating a prosecutor’s duty to do justice) to lying about Georgia law to the trial judge. (We’ll add that the plea deal further demonstrates unethical behavior, as it shows the prosecutors overcharged Powell.)

The deal also shows that Fulton County prosecutors don’t want to go to trial right now. Spending four months in the courtroom and presenting hundreds of witnesses would only help the defense of Donald Trump. There would be no surprises at Trump’s trial - all the witnesses would be on record, the weaknesses of the prosecution would be exposed.

Anyways, with all these factors at play, it’s no surprise that a misdemeanor plea deal might be the best option. This is true even when you’re innocent. Principle is great, but the system doesn’t work for the innocent. Trial is a terrible place to get to the truth. It’s an even worse place for justice. Better to accept a misdemeanor and go home instead of facing the near-certainty of 5+ years in prison and hundreds of thousands of dollars in legal fees.

This gets us to another important matter – accusations that Powell is now “cooperating” against Donald Trump.

Tim Pool, for example, said Powell would “blame Trump for everything.” Lawyer Elie Honig, perhaps the most obtuse legal commentator on cable news, on CNN called this a “big breakthrough for prosecutors” in their case against Trump. He further alleged:

“She’s going to have to admit that, ‘yes, we were trying to steal the election, yes, I knew it was illegal, and yes, it was in fact a crime,’” Honig said. “All of that is in play for her testimony against all of the 17 other co-defendants, including Donald Trump.”

We’re not buying it. Let’s break down why.

First, Honig (and many others) are claiming – wrongfully – that Powell has no choice but to implicate Trump in the RICO conspiracy.

These predictions defy the fact that Powell did not plead guilty to the principal charge against Trump: the RICO conspiracy. She did not admit that she was part of a criminal enterprise with Trump, et al. to “unlawfully” change the results of the 2020 election. She did not admit that she conspired to violate Georgia’s RICO statute with Trump or anyone else.

Instead, her plea deal is narrow and only relates to conduct that occurred in Coffee County, Georgia, where contractors accessed voting machines with the permission of local officials. Let us add a few words about those charges: Coffee County officials gave a written invitation for contractors from technical group SullivanStrickler to access their voting machines. Powell didn’t authorize those actions; she approved payment to SullivanStrickler after the fact. Of course, Fulton County maintains that local officials had no authority to grant access to voting machines, therefore making all of their actions illegal. (Authority would have been an issue at Powell’s trial.) In any event, Fulton County has no evidence that Powell or anyone from SullivanStrickler knew that Coffee County officials didn’t have this authority.

But Fulton County isn’t accusing Trump of directing, being involved with, or even knowing about what occurred in Coffee County. Thus, Powell’s plea to the Coffee County charges does not, and will not, directly implicate Trump.

Second, there are claims that Powell might have other information that will hurt Trump. Nobody has offered specifics; even The New York Times admitted “it remains unclear what Ms. Powell might say about Mr. Trump if called upon to testify against him.”

One topic might be the December 18, 2020 meeting at the White House with President Trump, General Flynn, Sidney Powell, Emily Newman, and Patrick Byrne. Yet it’s unlikely that Powell will offer anything new about that meeting. It was the subject of numerous depositions in the House Select Committee to Investigate January 6. Powell was deposed on that issue. So too was Byrne. Ideas were floated during that perfectly legal meeting – none of them being criminal – including Powell’s proposal that Trump secure voting machines and

“have them inspected by a professional, nonpartisan, bipartisan group of experts in a transparent fashion to obtain whatever evidence was on those machines to resolve the issue hopefully, you know, finally put the whole thing to bed, whichever way it came out.”

Relating to the point of what Powell might know, or what she might testify about, recall that she was actually disavowed by Trump’s legal team (Jenna Ellis and Rudy Giuliani) in late November 2020. Powell filed cases in Michigan and elsewhere, while Team Trump pursued their own legal strategies. There was no meeting of the minds between the two camps. As far as litigation strategy goes, Powell was excluded from what Trump’s legal team was doing. The indictment doesn’t suggest that Powell had such extensive contact with Trump that she could testify to his election certification efforts on January 6 or his state of mind concerning the 2020 election. Thus, we’re doubtful she has anything of value to offer Fulton County prosecutors against Trump.

Finally, the nature of the RICO conspiracy charge against Trump doesn’t require Powell’s cooperation.

To explain, the RICO conspiracy charge requires: (1) a conspiracy to violate Georgia’s RICO statute; and (2) any member of the enterprise to commit “any overt act to effect the object of the conspiracy.” Ga. Code Ann. § 16-14-4.

The State’s theory of the case is that Trump, et al. conspired to unlawfully change the results of the 2020 election. Thus, to prove the RICO conspiracy, they just need one overt act from any member of the enterprise (this could be from any of the 19 defendants or the numerous unindicted co-conspirators).

Now take a look at the indictment. It alleges 161 overt acts that were done to further the object of the conspiracy (the purported “unlawful” effort to change the results of the 2020 election), from Trump’s tweets to various legal memos from Trump’s lawyers (and other lawyers) interpreting the Electoral College Act or how Vice President Pence should proceed with the certification on January 6, 2021 to Trump’s calls with Georgia Secretary of State Brad Raffensperger.

Even if Powell were out of the case, even if she were deleted from the indictment and wiped clean prosecutors’ memory, they would still have 150+ overt acts which they say effected the alleged conspiracy. And under Georgia law, they only need to show one overt act to support the RICO conspiracy charge.

Our point is that Powell isn’t an essential witness to prove the State’s case against Trump. What she pleaded to – the Coffee County charges – has nothing to do with Trump. Speculation that she will cooperate against Trump, or somehow implicate Trump in the RICO conspiracy, isn’t supported by the facts. After all, she didn’t plead guilty to being part of a RICO conspiracy.