Thank U, Next
After all of the flipping last week, who could come next?
To help us understand how prosecutors think in these situations, and what we might expect to see in the coming weeks, I asked four former prosecutor friends to share their thoughts about who might be next. But before we get there, leave a comment about who you think might be the next flipper. No peeking at Barb McQuade, Elie Honig, Katie Phang and Paul Butler’s ideas before you do!
Barb McQuade is the former U.S. Attorney for the Eastern District of Michigan, current professor at the University of Michigan Law School and my #SistersInLaw podcast cohost. (She’s also written a forthcoming book, “Attack from Within: How Disinformation is Sabotaging America,” which you can preorder now):
Mark Meadows. Meadows appears to have dipped his toe into the waters of cooperation when he provided documents through the January 6 House Select Committee. At some point and for some reason, he stopped cooperating. His omission from the federal indictment as an unindicted co-conspirator has always struck me as curious. I had assumed he was a cooperator until he was charged in the Georgia RICO indictment. It makes no sense to cooperate in one forum and not the other because anything he would testify to in federal court would be admissible as an admission in Georgia. He likely will pursue his legal defenses, such as removal and immunity, until the courts resolve them, but if those efforts fail, cooperation will be an attractive option. He holds the keys to the kingdom as Trump’s chief of staff and the person who was by Trump’s side throughout the election and its aftermath. With so much to offer as a prosecution witness, he could possibly extract a large benefit in exchange.
Elie Honig was a federal prosecutor in the Southern District of New York as well as Director of the Division of Criminal Justice for New Jersey’s Attorney General, before becoming the senior legal analyst for CNN. He is on record as being less than a fan of the Fulton County prosecution:
The wise guy in me wants to say the next person to flip will be “Whoever else they charge with an attempt to steal an election through a five-year minimum racketeering conspiracy and offer a plea to a misdemeanor if they’ll write an apology letter.” Now, if DOJ flips these folks, they’ll do it right - make them take deals that meaningfully reflect their alleged conduct - and then it’ll be huge.
Katie Phang, a former Florida prosecutor, is the host of the eponymous “Katie Phang Show,” on MSNBC on Saturday and Sunday mornings. When Katie is in the anchor chair, guests have to be at the top of their game because she brings the attention to legal detail only a former prosecutor possesses. Her choice for who comes next:
The co-defendants involved in the Coffee County election equipment breach: Cathy Latham and Misty Hampton. For context, this would encompass Counts 32-37 of the Indictment. With Scott Hall and Sidney Powell both having pleaded guilty, and admitting to their roles, it would seem likely that Latham and Hampton, who are their alleged co-conspirators in those counts, would be next up. Also they’re fairly “low-level” on the importance food chain. I would not expect them to plead to a felony; I think they will plead to misdemeanors, like Hall and Powell did.
Latham and Hampton would have to cooperate as a condition of their probation. And Latham’s appeal to the Eleventh Circuit (over the removal issues) would be dropped, which is inconsequential as she would lose regardless. There’s no way she was a federal officer at the time of her alleged conduct.
The one wild card is Jenna Ellis, who is publicly at odds with Trump because of a lack of financial assistance with her legal fees, and who also has ties to Sidney Powell.
[Joyce’s note: I adore Katie but her use of “pleaded” as opposed to “pled” troubles me deeply. I’m going to try to work with her on this.]
Paul Butler was a federal prosecutor in the District of Columbia, where he focused his efforts on public corruption, including prosecutions of a senator and several FBI agents. Currently, he is a professor of law at Georgetown. Paul is a distinguished scholar and national expert on race and criminal justice. He is also a legal analyst for MSNBC, and given their similar backgrounds, it’s not surprising he reached a similar conclusion to Barb’s, although he has a twist:
Mark Meadows does not want to go on trial at the same time as Donald Trump and Rudy Giuliani. Of course nobody wants to go on trial at the same time as Donald Trump and Rudy Giuliani. But unlike some other members of the Georgia 19-18-17, Meadows sometimes has flashes of good judgment and maybe even civic mindedness, as when he turned over documents to the January 6 House committee, and reportedly agreed to an interview with Jack Smith.
At this point I think all the Trump alleged conspirators are more scared of Fani Willis than Jack Smith. She was ready to go to trial on Monday, with all 19 at the defense table, if she had to. She didn't need to flip three to make her case, but that just squeezes the vice on Meadows that much tighter. Probation would be a super good deal for him, so he’d best act quickly.
It’s interesting to see the variety of opinions, which underline the point that prosecutors can take different approaches and there is more than one path forward in a case. Elie’s comments in particular underline the distinction between the sorts of deals that state prosecutors give out—often far more lenient—in comparison to their colleagues in the federal system. The practice at Elie’s alma mater, the Southern District of New York, is to require defendants to provide information on all criminal conduct they are aware of, and to sometimes force them to plead to additional crimes they themselves disclose, as a precedent to a cooperation deal. And it’s relatively rare for federal prosecutors to offer a misdemeanor to someone who has been indicted on felony charges, although it does happen. I’m told by friends in Georgia that the deals Willis has made in the last few weeks are fairly standard there, and don’t raise their eyebrows.
Personally, I join Katie in thinking we may see a plea from Trump’s former lawyer Jenna Ellis as the next flip. She’s said publicly that she is having difficulty footing the bill for her lawyers, and if she hasn’t already, she’s going to realize soon that she can plead now or plead later/face conviction at trial after racking up big legal bills. As a former deputy district attorney in Colorado, Ellis should know that Powell’s plea signals trouble for her. They were literally on stage together selling the Big Lie and worked alongside each other as part of Trump’s legal team. Ellis has to be concerned that Powell will testify against her, and that others may beat her to Fani Willis’/Jack Smith’s door if she doesn’t get a move on.
So, there you have it!
And speaking of Thank U, Next, there is reporting today that suggests that Republican politicians in Georgia who had hoped to use a newly created “prosecutorial oversight” commission to punish Fani Willis, or even remove her from office, need to move on. Experts say the proposed rules and code of conduct for the newly established state commission set a high bar before action can be taken against a prosecutor, and in any event, don’t apply to conduct committed before the Commission was in place—which happened only after Willis indicted Trump and his co-defendants. It sounds like Fani Willis won't be knee-capped for simply doing her job.
Thank U, Next.
We’re in this together,