A recent filing in the Arizona fake voter case shows How close was Donald Trump to being impeached? It also illustrates the legal risk faced by the former president and, even more so, by Trump's accomplices, such as Rudolph W. Giuliani.
The Arizona case is one of five that state or local prosecutors have brought against those who falsely claimed to be “duly elected and qualified electors” of Trump and against those who orchestrated the scheme. Only one, in Georgia, included charges against Trump.
Arizona prosecutors have charged 11 fake electors with nine felonies each and seven Trump allies who masterminded various post-election schemes. Former Trump lawyer Jenna Ellis recently… agreed to cooperate against the other defendants in the case, while the false voter Loraine Pellegrino pleaded guilty to a single misdemeanor charge.
If this case follows the course of many other prosecutions for public corruption conspiracies, a cascade of similar depositions could follow. Unlike the implicated Trump lieutenants, the state, local and party officials and activists charged for their role as false electors can hope for a future in Arizona politics and can count on getting the best deals if they cooperate quickly.
As for the high-level Trump loyalists indicted — including Giuliani, Boris Epshteyn, John Eastman and Mark Meadows — Ellis’ cooperation agreement puts them squarely in the crosshairs. Ellis is not a low-level player, but was at the center of all the allegedly illegal conspiracies. He could likely substantiate the allegations against the rest, especially Giuliani, with whom he worked closely, as the indictment notes.
As for Trump himself, the filing that was made public by chance on Tuesday reveals that the grand jury in the case also wanted to indict him, but the prosecutor urged jurors not to do so for specious reasons.
The prosecutor noted “clear indications” from jurors that they had “an interest in bringing charges against” Trump. The New York Times reported that some of the jurors were upset by the prosecutor’s recommendation not to do so. But the jury ultimately followed his recommendation in the indictment, naming Trump only as “Unindicted Co-Conspirator 1.”
The prosecutor’s recommendation is based on what’s known as the U.S. Department of Justice’s Petite Policy. The grand jury was shown a PowerPoint presentation discussing the policy and then led into what the filing calls a “lengthy discussion” about it, after which the prosecutor said, “I think you should seriously consider this policy… And I know that may be disappointing to some of you.”
It's all the more disappointing for federal prosecutors familiar with the Petite Policy, which should have had no bearing on the Arizona grand jury's decision on whether to indict Trump.
The Petite Policy, named after a 1960 Supreme Court case, is a self-regulation the Justice Department imposes on its own prosecutors regarding conduct that is already the subject of a state or local prosecution.
Because the federal and state governments are considered separate sovereign powers, the Constitution does not prohibit the department from pursuing the same conduct alleged by state prosecutors. But because such prosecutions run counter to the spirit of double jeopardy protections, the department has concluded that it will only pursue such cases when a state prosecution would “manifestly leave unvindicated” the federal interest in the case. (I played a leading role in a restatement of the policy when I worked at the Justice Department in the late 1990s.)
The Rodney King case was a case in point. The federal government concluded that the Los Angeles County district attorney’s unsuccessful prosecution of the officers who assaulted King had “manifestly misrepresented” its interest in protecting against such excessive uses of force. It therefore filed a civil rights lawsuit over the same conduct that led to a conviction.
The Petite Policy says absolutely nothing about whether a state should bring charges in cases involving conduct that the federal government is also pursuing. It is relevant only after a state has brought its own case, in which case the Justice Department must consider whether such prosecution serves the federal interest.
There is no way around the stark claim that the Arizona prosecutor misinformed the grand jury (presumably unintentionally) by dissuading it from its clear interest in indicting Trump. And at this point, it may not be possible, in practice, to undo the mess. The case has moved on considerably, and Ellis’s deal and Pellegrino’s guilty plea indicate a possible end to many of the defendants.
I would expect more arguments from the false electors, who are faced with the calculation of resisting and losing their chance of a relatively good result. For the other defendants, and especially for Giuliani, the calculation may be different, but no less serious.
Ellis was personally involved in all of the alleged criminal conduct, beginning with the initial Giuliani case. November 2020 Fake Hearing in PhoenixIf she turns out to be a credible witness, it is hard to imagine how other members of Trump’s circle can escape conviction and prison terms. Even if Trump wins the election, he would have no power to pardon or otherwise rescue defendants from a state conviction, short of calling in the 51st Airborne Division.
Indeed, the Arizona case poses real risks for Trump as well. Giuliani, Eastman, Meadows and other Trump allies have so far avoided the most serious consequences for their alleged misconduct, but if they face a likely conviction, the only thing they really have to trade for favorable treatment is information about Trump, of which all of them (and especially Meadows) have plenty.
So far, the former president has largely managed to evade accountability despite the four criminal proceedings against him. But the events in Arizona are a reminder that these charges will not go away on their own and that for Trump, the election remains an uphill battle for his freedom.
Harry Litman is the host of the show Podcast “Talking to the Feds” and the “Speaking of San Diego” Speaker series. @harrylitman
