Jenna Ellis Guilty Plea Underscores the Absurdity of DA Fani Willis’s RICO Case

F ormer Trump 2020 campaign attorney Jenna Ellis pled guilty this morning in the Georgia election-interference case to a minor offense — aiding and abetting the provision of false information to the state — for which she will receive no jail time.

Fulton County district attorney Fani Willis has hyped her prosecution of Donald Trump, Ellis, and 17 others affiliated with the Trump campaign as a racketeering-conspiracy case, depicting the former president as the head of an organized-crime enterprise. I have contended that Willis does not have a RICO case under Georgia’s analogue to the federal Racketeer Influenced and Corrupt Organizations Act of 1971. The throng Willis has indicted did not function as an identifiable criminal “enterprise” as defined in RICO, and she lacks a single criminal objective as to which she can say all 19 defendants agreed. (It is not a crime to seek to reverse an election result — indeed, Georgia law provides for legal challenges to election outcomes.)

What Willis has, instead, is evidence that some state criminal offenses — minor in comparison to those at issue in the typical RICO case — were committed in the course of the campaign’s schemes to overturn the 2020 election. Consistent with that, Ellis is now the fourth defendant to plead guilty in recent days. None has pled guilty to the RICO conspiracy that Willis alleged in Count One — the overarching “offense” that frames her prosecution.

Because all four guilty-plea defendants are now cooperating with the state, the lack of a RICO plea is telling: Ordinarily, prosecutors require the first cooperators in a major case to plead guilty to the major charges, offering them sentencing leniency in exchange for their testimony against other defendants. Those kinds of pleas convince the public that there is a strong case and put pressure on other defendants to plead guilty. But not only have none of Willis’s cooperators conceded that there was a RICO conspiracy, much less pled guilty to it; none of them faces even a single day of imprisonment.

After the indictment, I argued that the case against Ellis should be dismissed. Besides the deeply flawed RICO allegation, she was charged only with the Georgia crime of soliciting the commission of a crime. As Willis has pled it, I believe this charge (Count Two of the indictment) is constitutionally infirm. Willis’s theory is that Ellis and several others (Rudy Giuliani, John Eastman, and Ray Smith) committed it by petitioning the Georgia state senate, at a subcommittee hearing on December 3, 2020, to appoint a Trump slate of electors (as an alternative to the Biden electors whom the state did certify after Biden narrowly won the popular vote in Georgia’s presidential election). The solicitation charge is untenable because (a) the Constitution guarantees the right of Americans to petition government, and (b) even if Georgia legislators had wrongly appointed an alternative slate of electors, which they didn’t, it would not have been a prosecutable crime.

Not surprisingly, then, Ellis did not plead guilty to the dubious charges against her in the indictment. Instead, to obtain the guilty plea, Willis filed a new one-count charging document accusing Ellis of aiding and abetting false statements and writings. This is about as trivial as it gets. The prosecutor is not even alleging that Ellis herself provided false information to state officials, only that she assisted more senior counsel — in particular, it appears, Rudy Giuliani — in providing false information.

In the indictment (to which, again, Ellis did not plead guilty), it is alleged (in Count Three, in which Ellis was not charged) that, at the same December 3 state-senate subcommittee hearing that Ellis attended, Giuliani falsely contended that (a) 96,600 mail-in ballots had been counted even though there was no record of those ballots having been returned to a county elections office; and (b) a Dominion Voting Systems machine in Antrim County, Mich., had recorded 6,000 votes for Biden that were actually cast for Trump.

It is not clear from what I’ve seen of the new charging documents that these were the false representations of which Ellis pled guilty to aiding and abetting the dissemination. Nevertheless, in court this morning, during her allocution (the part of a guilty-plea proceeding where the defendant personally relates what she did that makes her guilty), Ellis said she had helped present election claims to the state without performing due diligence to ensure their accuracy. (The video recording of Ellis’s allocution is here.)

In exchange for her plea to this felony charge, Ellis was sentenced to five years of probation, ordered to pay $5,000 in restitution, and directed to perform 100 hours of community service. She was further required to write a letter of apology to the citizens of Georgia (she has already fulfilled that condition, and she reiterated the apology in her above-linked statement in court this morning).

While the media–Democrat complex is salivating that Trump will be sunk by the cooperation of Ellis and the other three defendants who’ve pled out to minor charges with no jail time in recent days (Kenneth Cheseboro, Sidney Powell, and Scott Hall), that seems like wishful thinking. Again, none of the defendants has pled guilty to racketeering nor provided any indication that Trump and his remaining co-defendants violated RICO.

As I noted in connection with Powell’s plea last week, she may have relevant testimony regarding Trump, but it’s not necessarily incriminating (in fact, at a White House meeting in mid-December 2020, Powell reportedly made a lunatic proposal that Trump seize state voting machines, which Trump actually rejected). Ellis, like Cheseboro, had direct communications with Giuliani; that may implicate the former New York mayor more deeply in the alleged provision of false information to state officials and the so-called fake electors scheme, but it does not necessarily implicate Trump. The former president appears to have dealt directly with Giuliani much more than with the other lawyers; he will undoubtedly claim that he was relying on his lawyers — such as Giuliani, Eastman, Powell, Cheseboro, and Ellis — to ensure the accuracy of information on which the campaign was relying.

Of course, if Ellis were to testify that she and the other lawyers knew the information they were peddling was false, that would be damaging to those lawyers — at least on a false-statements charge. As I detailed back in March, when Ellis was censured by the state supreme court in Colorado (where she is licensed to practice law), she admitted to making various public misrepresentations in claiming election irregularities on Twitter and various news programs.

The recent spate of pleas is being presented by DA Willis’s office and her champions in the press as a sign of prosecutorial momentum. But it would be more accurate to say that Willis wildly overcharged the case and is now picking off some defendants on minor charges — with no-incarceration sentences that hardly befit a grand conspiracy capable of bringing American democracy to the brink of destruction.