Inching Closer to Justice

There have been weeks in the past where pundits have said the walls are closing in on Trump. This week, that certainly feels true. Yesterday’s ruling in the 11th Circuit clears the path for the special counsel to move forward expeditiously on the Mar-a-Lago investigation. But that’s not the only threat he faces.

Former Trump Chief of Staff Mark Meadows has to testify in the Fulton County, Georgia, district attorney’s election interference investigation. Meadows was one of a group of witnesses who went to court to avoid testifying. Courts have not been sympathetic. The South Carolina Supreme Court issued a terse, unanimous order that found his claims to be “manifestly without merit” and ordered him to appear.

Cassidy Hutchinson’s January 6 committee hearing testimony highlighted one of the key reasons Meadows, if he decides to tell the truth, could be dangerous to Trump. (That may sound like a big “if,” but ultimately Meadows may be faced with telling the truth or having everyone point the finger at him as the guy where the buck stops, the highest-ranking person in the January 6 conspiracy who can be charged and the one who should face the most serious penalties. Over the summer, there was reporting that Trump’s lawyers would take that approach. More recently, former Vice President Mike Pence has blamed Meadows for not “shielding” Trump from the Kraken lawyers and their bad advice. It seems likely that Meadows will find himself on the horns of this dilemma at some point—does he want to be on the bus or under it?—and I’m sure we’ll be discussing this in greater detail.)

Hutchinson’s testimony to the January 6 committee, if Meadows confirms it, would provide strong, even definitive, evidence that Trump knew he’d lost the election. Having direct testimony to show that makes a conspiracy charge involving interference with the transfer of power far more attractive to prosecutors than if knowledge has to be cobbled together from circumstantial evidence. That’s not necessarily an impediment—prosecutors do it all the time. But having direct evidence in the form of Meadows’s testimony, substantiated by his real-time conversation with Hutchinson, is something they’d much prefer. And this may be just the tip of the iceberg. If Meadows does try to cooperate his way out of trouble, he could have a lot of additional information that we know nothing about at this point to offer, given his proximity to the Oval Office and access to the President and others in his inner circle.

Additionally, Meadows was the person who placed the infamous call to Georgia Secretary of State Brad Raffensperger—the one where Trump cajoled and threatened to see if Republican officials in Georgia could “find” him the 11,780 votes he needed to win the state in 2020, after losing to Biden. Meadows brought Trump into the call after ascertaining he had Raffensperger on the line. The call itself is recorded, and damning. But Meadows’s testimony has the potential to add to that because he knows how and why the call got set up and whose idea it was. He could shed light on what Trump hoped to accomplish. Meadows was the errand boy. Prosecutors will want to know, what was the errand Trump sent him on?

Meadows also made a surprise visit to Cobb County, Georgia, in late December 2020 to observe the signature audit process—a highly irregular activity for the president’s chief of staff during a still-contested election, especially as he was accompanied by Secret Service agents. Local news outlets reported that Meadows was overheard in the halls outside the area where the audit was taking place saying, “I’m not making any allegations as much as I am trying to get to the truth.” The Fulton County DA, and perhaps the newly installed special counsel Jack Smith, would like to learn what that truth really is.

As a prosecutor, you’re itching to get Meadows in front of a grand jury and ask him about all of this. Prosecutors know a lot at this point; they’ve spoken with a lot of witnesses. But Meadows doesn’t know exactly what they know, and that makes lying or withholding information dangerous for him, as in perjury-charges dangerous. So as a defense lawyer in this situation, you hope prosecutors will offer your guy a deal that you can convince him to take. Otherwise, it’s a long day of Meadows taking the Fifth and hoping he doesn’t get a target letter from the prosecutors at the end of it.

Ultimately, Meadows seems like a witness who can tag Trump and establish that he knew he lost and intended to interfere with the transfer of power. But cooperation from those in Trump’s inner circle has been hard to come by. That’s been true in the Trump Organization criminal investigation in Manhattan, where Trump’s longtime CEO, Allen Weisselberg, went to prison rather than cooperate against Trump personally (the case against the organization should go to the jury tomorrow) in the Mueller investigation, through two impeachment trials, and in Trump’s still-unresolved post-presidency legal problems. While Meadows would be smart to cut himself a deal at this point, given the history, let’s not bank on it just yet. But it would be the smart thing to do.

So add Mark Meadows to the list of reluctant witnesses, like Lindsey Graham and Newt Gingrich, who will have to perform the same solemn duty any other American who is a fact witness to a crime must perform—complying with a grand jury subpoena for testimony. Meanwhile, Retired General Mike Flynn, who twice confessed to lying to the FBI about his conversations with the Russian ambassador, under oath, in open court, before being pardoned by Trump, continues to fight his subpoena.

On Wednesday, Flynn filed a 48-page appeal with a Florida state court after being ordered to appear by the lower court. Flynn claims he is being targeted merely because he is a “high-profile individual that was involved in the public discussion about the uncertain outcome of the 2020 election.” He claims his testimony is neither material nor necessary to the grand jury investigation being conducted in Georgia and also that the interstate compact that authorizes prosecutors in a signatory state like Georgia to obtain testimony from witnesses in other signatory states like South Carolina and Florida doesn’t apply to him. His case is now being handled on an expedited schedule, which has him on track to testify mid-December unless the court here does something unexpected. One thing is clear: people around Trump surely don’t want to have to testify about it under oath.

Still, as I’ve reflected before, it seems odd to let the fate of the nation depend on a prosecutor in one county in Georgia when issues of national stature are at stake. DA Fani Willis has done an extraordinary job of pursuing her case. There is no doubt that Georgia has laws that are well-suited to address Trump’s conduct. Section 21-2-604 of the state’s code of law, titled “Criminal solicitation to commit election fraud,” includes both felony and misdemeanor options that fit the facts, making it a crime when a person “with intent that another person engage in conduct constituting a felony under this article … solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct” or when a person “with intent that another person engage in conduct constituting a misdemeanor under this article … requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.” There is a conspiracy option as well.

But there are federal statutes that could be used, including conspiracy to defraud the government. Trump’s conduct toward Raffensperger might be depicted as extortion, since Trump suggested that Raffensperger might find himself the subject of a criminal investigation if he didn’t go along with Trump’s request. And there are statutes similar to Georgia’s on the federal books. While one has to admire the tenacity of Willis, who would undoubtedly be reluctant to cede her investigation to the feds if they show up at this late stage, federal resources and courts would be better suited to prosecuting, and ultimately incarcerating, if Trump is convicted, a former president.

To date we’ve seen no public move by federal prosecutors to intervene in the Georgia case. One question is whether that might change with the special prosecutor in place. As Willis continues with her grand jury work and Jack Smith takes over the DOJ investigation, we’ll certainly get answers. But in the meantime, for Trump, everywhere he looks, the news seems to be bad—whether it’s waiting on the Manhattan jury in the criminal case involving his business, watching the special counsel investigation gear up, and knowing that the Georgia investigation is moving forward as well. For everyone who is impatient with the pace of the legal system, as lawyers, that’s something we hear all the time. But it’s never been as acute as in the case of a president who needs to be held accountable and our concerns that the criminal justice system may not be up to the task. Increasingly, it looks like there’s reason to be optimistic.

We’re in this together,

Joyce