Another day, another guilty plea with a no-prison sentence by a defendant in the ballyhooed RICO prosecution brought by Fulton County, Ga., district attorney Fani Willis in connection with the Trump campaign’s schemes to overturn the 2020 presidential election.
Kenneth Cheseboro, a 62-year-old Harvard-educated lawyer who advised the Trump campaign, pled guilty today to a single felony charge of conspiracy to file false documents.
As with Thursday’s misdemeanor guilty plea by Sidney Powell (another Trump campaign lawyer) and last month’s misdemeanor plea by Scott Hall, the Cheseboro plea illustrates that Willis is not anxious to try to push her incoherent racketeering conspiracy charge. Though charged with several felony counts, including the RICO offense (which is alleged against all 19 indicted defendants, including former president Donald Trump), Cheseboro was permitted to dispose of the case by pleading to one false-documents charge. He received a sentence of five years’ probation, which could be reduced to three. (By contrast, Powell got six years’ probation for her plea to misdemeanor charges.) He was assessed $5,000 in restitution and, like Powell and Hall, is also required to write a letter of apology to the people of Georgia.
To be clear, I have argued that Willis’s indictment is overcharged and, thus, overhyped. I haven’t said she had no case; I said the conduct she charged — to the extent it was potentially criminal, as opposed to an elected progressive Democrat’s effort to criminalize constitutionally protected political activity by Republicans — is significantly less serious than a racketeering conspiracy (a charge that prosecutors usually reserve for organized-crime enterprises that pose a continuous threat of serious lawbreaking).
In that vein, I’ve contended that Willis, instead of indicting a sprawling RICO case, should have narrowly charged the so-called fake-electors scheme in two indictments: one against Trump and the six advisers who conjured up the scheme, and one against the three defendants who represented themselves as Trump electors.
These two groups of defendants may have violated Georgia law, but it appears that they had different understandings of the nature of the scheme: The advisers group allegedly intended for the existence of Trump elector slates to serve as a pretext for Trump supporters on Capitol Hill to disrupt and delay the electoral-vote count by Congress that would ratify President Biden’s victory. The electors appear to have believed that they were just fulfilling a legal need for Trump to have a slate of electors in the (highly unlikely) event that his lawsuit seeking to invalidate the election in Georgia was successful. (Note: I am not saying any of the advisers and electors is necessarily guilty, just that Willis appears to have had a good-faith basis to indict the fake-electors counts — something I don’t believe is true of the RICO count.)
Cheseboro was a key member of the group of Trump advisers who designed the scheme. In fact, it appears to have been based on his legal theory.
I have been skeptical of the fake-electors charges, given that (a) Georgia law provides for election challenges, (b) federal law provides for challenges to state-certified electoral votes, and (c) the Trump electors may have believed they were just a contingency in case the lawsuit succeeded (i.e., they may not have intended to misrepresent themselves as the authentic, state-certified electors). It is also noteworthy that, while the election-interference indictment brought by Biden Justice Department special counsel Jack Smith has alleged that Trump and his unindicted co-conspirators “organized fraudulent slates of electors in seven targeted states” (including Georgia), Smith has neither charged the fake-electors scheme as a standalone conspiracy nor (as of yet) indicted anyone other than Trump.
But all that said, even if defendants may have believed they were acting within the margins of the law, there would obviously be potential criminal liability if they filed with the government documents that contained material misrepresentations.
That is what tripped up Cheseboro. He pled guilty to conspiring to cause the filing of false documents. As the indictment details, when the Trump electors met on December 14, 2020 (the day fixed by federal law for the Electoral College vote), they executed documents described in the indictment as “CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA” and “RE: Notice of Filling of Electoral College Vacancy.” But the authentic certified electors from Georgia were the Biden slate, and there was no Electoral College vacancy to fill since the Biden electors voted.
Even conceding that these documents were inaccurate, I still think it will be hard for Willis to convict the electors of filing false documents unless she can prove that the electors really intended to deceive the federal government into believing they were the true state-certified electors.
On the other hand, the prosecution’s case could be stronger against Trump and his advisers. Again, Willis may be able to prove that they intended these documents, which they knew were false, to be used by Trump’s congressional allies to argue that the state’s votes should be invalidated — or, at least, that they should be remanded to the state legislature for further deliberation.
I suspect that is why Cheseboro decided to plead guilty rather than go to trial. His concession that there was an illegal scheme and that he was complicit in it, coupled with his agreement to cooperate with prosecutors, imperils Trump. After all, the former president is charged in the scheme. To be sure, the indictment does not establish that Trump personally knew the details of the fake-electors scheme. It does indicate, however, that Cheseboro discussed it with Rudy Giuliani, who was the Trump campaign’s top lawyer and had extensive contact with Trump. And now Willis can supplement that evidence with Cheseboro’s testimony. Presumably, he would explain who knew what regarding the scheme.
Besides Trump, Giuliani, and Cheseboro, the other advisers charged in the fake-electors scheme are Trump campaign lawyers John Eastman and Ray Smith, another Trump campaign official named Michael Roman, and Robert Cheeley, a lawyer who supported Trump in Georgia.
The scheduled trial next week in Fulton County has been canceled. One had been scheduled for Cheseboro and Powell because they declined to waive their speedy-trial rights. Their guilty pleas obviate the need to conduct a trial. No trial date has yet been set for the 16 defendants who have not pled guilty.