Since his entry onto the American political stage in 2015, former president Donald Trump has managed to avoid serious consequences from most investigations into his conduct through the loyalty of his close associates and by deploying the power of the office he held from 2017 to 2021.
Even as he faces four criminal cases against him, Mr Trump’s continued campaigning for the presidency in next year’s general election has allowed his confidantes to credibly hold out the possibility that a win over President Joe Biden next year would allow him to deep-six at least the two cases currently being prosecuted against him by Special Counsel Jack Smith. And in the case pending against him in a New York court, he managed to avoid charges more serious than those he faces for allegedly falsifying business records thanks to the loyalty of his company’s executives, including a longtime aide who served a jail sentence rather than give evidence against him.
But many legal experts believe the 40-count indictment brought against Mr Trump and 18 co-defendants by Fulton County, Georgia District Attorney Fani Willis will push his co-defendants, some who have been among his closest allies, beyond their breaking points and force them to turn on the ex-president rather than face the wrath of a Georgia jury.
The list of targets who Ms Willis is now prosecuting includes some of the twice-impeached, indicted-four-times-over ex-president’s most high-profile confederates, including his former personal attorney, ex-New York City mayor Rudy Giuliani, who faces 12 separate felony charges as a result of his work to help Mr Trump push to overturn his 2020 election loss to Joe Biden.
Mr Giuliani, a former prosecutor who made a name for himself by bringing Racketeering Influenced and Criminal Organisation (Rico) prosecutions against the Italian-American mob in the 1980s, is now being prosecuted under a state version of the anti-organised crime law alongside John Eastman, the ex-law professor with whom he appeared at the 6 January 2021 rally which preceded that day’s attack on the US Capitol by a mob of Mr Trump’s supporters.
They will also be joined in the dock by three ex-Trump administration officials: Mr Trump’s last White House chief of staff, Mark Meadows, ex-Department of Justice official Jeffrey Clark, and a Trump White House aide turned campaign official, Michael Roman, each of whom is understood to have been described in a federal indictment of Mr Trump as anonymised co-conspirators.
Also charged alongside the ex-president are former Trump campaign lawyers Jenna Ellis, Kenneth Chesebro and Sidney Powell.
In addition, Ms Willis successfully sought charges against a slew of other defendants associated with Mr Trump’s allegedly illicit efforts, including an alleged plan to submit forged electoral college certificates for counting by then-vice president Mike Pence.
These other co-defendants include Georgia GOP officials, including ex-Georgia Republican Party chair David Shafer, ex-Coffee County, Georgia elections director Misty Hampton, and other GOP activists who signed the certificates.
According to legal experts, the sheer number of co-defendants, plus the harshness of the charges against them, will push at least some of them to flip on Mr Trump in hopes of a better deal. These experts say the particulars of Georgia’s criminal law, under which a friendly Republican governor could not issue a pardon for these offences, will also push many of the people named in the indictment to cooperate with prosecutors.
Glenn Kirschner, a former assistant US attorney in Washington, DC who prosecuted several racketeering trials in the 1990s, told The Independent that Ms Willis appears to have already secured significant help from numerous individuals based on the number of unindicted co-conspirators described in the indictment.
While Mr Kirschner suggested the “best” deals — including full immunity from prosecution — had most likely been handed out before Ms Willis brought her case to a grand jury, he also said the number of defendants who were ultimately indicted will necessitate more dealmaking if Ms Willis wants to take the case to trial.
“There’s no way 19 are going to trial,” he said.
The former federal prosecutor said his practice as an assistant US attorney was to “identify potentially valuable defendants that I wanted to develop into cooperating witnesses”.
“Sometimes I succeeded, often I didn’t. But what I did find was that when you talk to them before they were indicted, the whole prospect of them being criminally indicted was a little theoretical, hadn’t quite hit home,” he said.
“And then once they see their name on the wrong side of the ‘v,’ it tends to get their attention. And often, that’s when they would want to begin negotiating again. And we would develop a fair number of cooperating witnesses after they were indicted.”
Mr Kirschner added that in his experience, the mechanics of holding trials would also limit the number of defendants who are tried and will give Ms Willis incentives to cut deals when possible.
His suggestion that there has already been significant cooperation by people involved in the case was echoed by John Dean, the former White House counsel under Richard Nixon who testified against the disgraced president during the Watergate scandal.
Mr Dean, who pleaded guilty to obstruction of justice and turned state’s evidence for federal prosecutors, told CNN on Monday that he believes it’s “very likely” that Mr Trump’s co-defendants will “flip” now that charges have been filed.
“They just wanted to see the indictment, and they’ve seen it now, and it’s not pretty,” he said, adding that he thinks Mr Meadows will “probably find a solution to get out of the Georgia case, too”.
Norm Eisen, a senior fellow at the Brookings Institution who worked for House Democrats during Mr Trump’s first impeachment trial, also told The Independent that he thinks co-defendants who cooperate now will be far worse off than they could have been had they turned on the ex-president earlier.
“The best deals were already handed out. It’s like you know, it’s like getting a season ticket —the earlier you buy, the better the value,” he said. “The good deals were there for the fake electors, many of whom got immunity without having to agree to any jail time.”
Mr Eisen also noted that Ms Willis has a history of pleading out Rico defendants, “sometimes on very generous terms,” in exchange for cooperation.
“So I think we may see some of these individuals turn on the former president and the remaining co-conspirators,” he said.
But another attorney who spoke to The Independent, Georgia-based defence lawyer Andrew Flesichman, expressed significant doubts that any of the 18 co-defendants not named Trump would turn on the ex-president, citing the relatively tame penalties they could face if convicted and the lack of leverage which state prosecutors have compared to their federal counterparts.
Mr Fleischman pointed out that the federal experts who have been opining on the case in the press aren’t taking into account how the federal system forces defendants into deals because of the lack of parole for convicted defendants who are sentenced to jail or prison.
“The sentencing exposure for most of these people is not even that bad,” he said.
“All these offences, you can get straight probation on them, and all these people are first-time offenders and this won’t count as a felony on their record, so I don’t think the state has as much pressure to turn people as some people are saying.”
Mr Fleischman said it’s more likely that the people who were going to flip on Mr Trump have already done so. He also suggested that those co-defendants who were fake electors have a credible defence by claiming they were lied to by other co-defendants.
“If you stick with Donald Trump, you can still raise your defence that you were lied to, which is a pretty good defence for these false electors, and then their sentencing exposure is not that bad,” he said. “I could understand if they want to take it to trial on some kind of principle.”
The Independent has reached out to Mr Trump’s representatives for comment.
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