A Bad Day for Trump

and more coming

Sidney Powell pled guilty in the Fulton County, Georgia case today. That’s very bad news for Donald Trump.

Powell became known as the Kraken following a November 2020 appearance on Fox Business Network appearance where she claimed there was voluminous evidence that “President Trump won this election in a landslide.” She said he won by hundreds of thousands of votes and claimed big tech and social media companies were behind the fraud, before saying, “I’m going to release the Kraken.”

Powell is the first person in Trump’s inner circle who is known to be cooperating against him. As the walls were closing in on Trump following repeated losses in court and Mike Pence’s rejection of the suggestion he should interfere with the certification of the election on January 6, Trump strongly considered naming her as the special counsel to investigate voter fraud in connection with a cockamamie plan to have the military seize voting machines. She is the closest publicly known member of his inner circle to cooperate.

Wednesday night, before Powell’s decision was made public, I wrote a piece for MSNBC that began, “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.” I speculated that a plea from Powell might be imminent, because an earlier defendant who pled guilty, Scott Hall, could likely testify against her on the plot to illegally access Georgia voting machines in Coffee County. It seems that Powell, in fact, did not want to risk a sentence of five to 20 years in a Georgia state prison. The terms of her deal require her to testify truthfully in the case in order to avoid custody. She decided it was time to cut her losses and flip on her co-defendants, and likely, Trump.

That, of course, would be the endgame for prosecutors. But it’s worth adding a caveat. Not all cooperators are what they appear to be. Recall that Paul Manafort said he was cooperating before it suddenly became apparent he was not. Mark Meadows turned out thousands of text messages to January 6 investigators in the House before he decided to stop cooperating. If Powell fulfills her obligation to testify fully and truthfully, well, safe to say there are a lot of people, but most definitely Trump, sweating it out tonight. Her cooperation certainly puts pressure on other co-defendants who don’t want to be the last person standing when the music goes off.

While today’s developments are limited to the Fulton County case, it’s likely they have implications for the special counsel’s election interference case in Washington, D.C. as well. Once Powell testifies—and she appears to have given a taped interview to prosecutors in advance of her plea—that testimony can be used against her in other cases, and if she deviates from it, can be used to impeach her on cross examination. Nothing in her agreement with Fulton county obligates Powell to testify in the federal case. But having decided she doesn’t want to go to prison for Trump in Georgia, there’s no reason to believe she’d want to in Washington. Powell’s plea agreement obligates her to testify truthfully in any co-defendant’s case and to stay out of the media spotlight, which is a sign prosecutors want to avoid creating new material defendants could use to cross examine her. Powell also agreed to refrain from any communications with co-defendants. If she fails to uphold her end of the bargain, she loses her deal. Having put a toe in the water and admitted guilt, her only real option is to jump in all the way and cut a deal with Jack Smith, if he’ll have her. Otherwise, she exposes herself to the risk of prosecution or perjury charges from the special counsel, which would undercut the value of her plea in Georgia.

Powell pled to to six misdemeanors where she acknowledged conspiring to intentionally interfere with the performance of election duties. Prosecutors will recommend a sentence of six years of probation—no custody. As with Hall, who also received a misdemeanor deal and a dismissal of felony charges, this signals the value prosecutors place on the testimony they expect to receive. Powell could be an important witness because of her personal involvement with and access to Trump, who notoriously doesn’t text or email. Those in-person contacts could turn out to be some of the best evidence prosecutors will get of Trump’s state of mind. She was charged in the original indictment with racketeering and six other counts regarding the scheme to keep Trump in power after losing. Powell was also in Georgia the day after January 6, as a participant in the unauthorized breach of elections equipment in Coffee County. Prosecutors will have to prove those charges against all defendants who go to trial. Powell’s deal suggests they believe she has valuable testimony to offer on those charges.

Powell’s first grab at public attention came in a late November 2020 press conference with Rudy Giuliani, where she made claims that the New York Times wrote, “strained credulity, even for a presidential campaign that has repeatedly lowered the bar.” Powell claimed Cuba, Venezuela, the Clinton Foundation, George Soros and Antifa were responsible for making votes for Trump disappear. The following week, she claimed Georgia Secretary of State Brad Raffensperger and Governor Brian Kemp were part of the plot. “Georgia is probably going to be the first state I’m going to blow up,” she said on Newsmax TV. After those comments, the Trump campaign disavowed her. Imagine, a lawyer who was too crusty for even the folks pushing out the Big Lie. Powell’s current co-defendants, Rudy Giuliani and Jenna Ellis, issued a statement that said, “Sidney Powell is practicing law on her own. She is not a member of the Trump legal team. She is also not a lawyer for the president in his personal capacity.”

But of course, that didn’t last for long. By December, Powell was back, pitching a new plan to Trump on overturning the results of the election. She participated in the notorious December 18 Oval Office meeting where she, her client disgraced former General Michael Flynn, former Overstock.com CEO Patrick Byrne, and former Trump administration official Emily Newman made their way in, despite not being on the president’s schedule. Powell peddled her lies about rigged Dominion voting Machines to Trump. White House Counsel Pat Cippollone and assistant Counsel Eric Herschmann got wind of the meeting, and as they began to challenge the four’s claims about international involvement in election fraud (this is the bit about dead Hugo Chavez influencing the election), the meeting devolved into a screaming match. Powell proposed declaring a national security emergency and using it to seize voting machines. The notion of Powell becoming a special counsel was discussed, as Trump brought Giuliani and Meadows into the conversation.

The Axios report of the meeting said that Trump, although he didn’t entirely buy Powell’s wild theories, told his White House Counsel team, “You guys are offering me nothing. These guys are at least offering me a chance. They’re saying they have the evidence. Why not try this?”

Is that how it really happened? Powell, who was there, knows for certain. If her testimony is credible, she can fill in gaps and corroborate other witness testimony. And as a participant in Trump’s inner circle, she may prove to be the witness who can truly narrate the details of the conspiracy. So, yes. A bad day indeed for Trump.

The Special Counsel’s indictment of Trump, in which Powell is widely believed to be one of the unnamed, unindicted coconspirators, alleges that Trump privately acknowledged to others that Powell’s unfounded claims of election fraud were “crazy,” but that he promoted them and signed onto her Georgia lawsuit nonetheless. Prosecutors called her Georgia case “far-fetched” and her assertions of fraud “baseless.” Powell could possibly shed light on whether Trump acknowledged that they were selling falsehoods about election fraud to the American people.

During the January 6 House committee hearings, Maryland Democrat Jamie Raskin said the Oval Office meeting was “critically important because President Trump got to watch up close for several hours as his White House counsel and other White House lawyers destroyed the baseless factual claims and ridiculous legal arguments offered by Sidney Powell, Mike Flynn and others.” Powell may be able to testify to their personal interactions at the meeting and comments Trump made to her.

So, there are numerous possibilities for why prosecutors believe Powell’s testimony is valuable. At the same time, plenty of questions remain, including who might be next to cooperate.

Powell is a big fish for prosecutors to bring on board, and not only because of Trump. Her interactions with numerous other codefendants—Rudy Giuliani for one—make her valuable too. Will Kenneth Chesebro, also on the eve of trial, plead guilty? He reportedly rejected an offer from Fani Willis last month, but his position has changed—Judge McAfee denied his motions to dismiss earlier this week. The Judge ruled that Chesebro’s strategy memo on how to prevent certification of the election on January 6 and other key memos are admissible at trial under the crime fraud exception to the attorney client privilege.

While Chesebro may feel better about going to trial without Powell and her Kraken baggage sitting next to him, it’s still a risk. The evidence against him is strong and has gotten better with the Judge’s recent rulings. There are good odds that the Harvard educated lawyer may prefer an outcome that doesn’t involve the risk of spending years behind bars in Georgia. Powell’s plea, on its own, is highly significant. But Trump has to be worried that she won’t be the only domino to go down.

Today was quite a fall from grace for Powell, who flew high while she was in Trump’s orbit. The lawyer who aspired to become an emergency special counsel in the final weeks of Trump’s presidency and the hero of the Big Lie ended up pleading guilty. Like Icarus, the Kraken flew too close to the sun.

Read the updated charges against Powell here: https://www.documentcloud.org/documents/24041660-georgia-v-powell-updated-criminal-accusation

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We’re in this together,

Joyce