Another day, another corrupt act by Democratic Party-aligned government lawyers—this time in Arizona.
Former Trump campaign lawyer Jenna Ellis had all nine felony charges dismissed against her in the Arizona electors case Tuesday, supposedly “in exchange for” her promise to testify, according to the prosecutor’s press release.
There is no exchange here. Prosecutors in Democratic circles are now more concerned with feeding MSNBC’s nightly narrative machine than they are even pretending to care about justice.
This “cooperation agreement,” released gleefully in a Monday press release, fails to do what all cooperation agreements are supposed to do—help prove the case.
The case the Arizona AG is trying to make essentially boils down to: When Republicans in Arizona attempted to file an alternate slate of electors in the 2020 Electoral College, they were committing felony-level “fraudulent schemes” and forgery.
That is a difficult case to make, as Fulton County DA Fani Willis is also learning. Proving that does not, as the left would have you believe, merely require that the prosecutor prove that Joe Biden did, in fact, become president on January 20, 2021.
Prosecutors would have to prove, beyond a reasonable doubt, that:
- The election results were a legitimate tally of the valid votes cast, and
- Trump’s defenders did not believe their own statements were true.
If you spend any time listening to Republican voters, there are a lot of Americans who do not believe the election results were a valid tally. If Jenna Ellis and her codefendants felt the same, they were not and are not alone.
This makes proving the defendants knew and believed the election results were legitimate the biggest hurdle in the case. If Jenna Ellis could help prosecutors do that, then she really would be a valuable witness as a cooperator.
But this dismissal does not do that.
When competent, ethical prosecutors consider making a defendant a cooperating witness, they look for two things:
Part One: Helpful testimony from the defendant, and
Part Two: Facts that allow a prosecutor to defeat a defense argument that the testimony is only being given to secure a better deal.
Part One without Part Two is useless at best; detrimental to justice at worst. Of course a criminally accused person will say something that is not true if it means they will get a lighter consequence. Following that route puts potential lies in front of the jury, undermines jury trust in the prosecutor, and the cooperator gets less than deserved while undermining the case against the others.
The most common way competent and ethical prosecutors satisfy Part Two is through a pre-arrest confession (not just a statement) by the defendant. A pre-arrest confession allows the prosecutor to argue — after the defense cites the cooperator’s self-interest: How does the defense explain the defendant’s pre-arrest confession when he wasn’t charged, there was no deal on the table, he waived his constitutional rights unilaterally, and it was entirely against his interest to make such a confession, as it all but assured his eventual conviction?
The competent and ethical prosecutor then forces the cooperator to admit his most serious crimes, and simply allows the punishment to be appropriately lower within that crime’s range of punishments because the cooperator accepted responsibility. Everything is above board, and presented to the jury as such.
Jenna Ellis’ “cooperation” does not satisfy Part Two. She gave no admission pre-litigation. According to court filings, she gave a “free talk” to prosecutors on June 17, after the grand jury returned a true bill and on the same day as the first arraignment.
There are two reasons that, even if she did give helpful testimony, that would be useless. First, “free talks” are usually accompanied by some sort of immunity agreement where if the parties don’t agree, prosecutors cannot use the statement against her. Ellis, therefore, had no skin in the game. Second, not only was she already facing the Arizona charges (hence the “free talk”), she was already on active probation for the same conduct in her Georgia case. It did her no potential harm to admit what she had already admitted in criminal court elsewhere.
So, for failure to satisfy Part Two, this “cooperation” is already worthless. But what’s even worse? It doesn’t even satisfy Part One! As in, her prior statements to the Georgia court, if true, help the defense, not the prosecution!
All one has to do is look at the Georgia plea deal, which the Arizona AG tries to use to bootstrap a “punishment” to her straight dismissal of all charges. That Georgia plea deal at least required her to plead to something, even if it was a ticky-tack offense that the prosecution promised to dismiss later. But there is a deeper, hidden-to-MSNBC problem in that plea deal—Ellis was only required to say, “I believed that [election] challenges should be pursued,” but in retrospect, she regrets doing so. That earnest belief at the time is what the prosecution has to disprove beyond a reasonable doubt! Not only is her statement not credible. Even if it is to be believed, it helps the defense!
No sane prosecutor wants to be in the position of having to argue to a jury their own cooperating witness should be ignored. Even if Ellis did offer more helpful testimony in her “free talk,” all the defense has to do is press play on a recording of her statements before that under oath to the Georgia court.
Jenna Ellis Pleads Guilty in Trump Election Case, Implicates Rudy Guiliani and Others
Arizona Grand Jury Indicts 11 Republicans, Trump Associates in 2020 ‘Fake Elector’ Scheme
In a just world, no judge would accept this plea deal. Prosecutors are extorting it out of her by charging her with near-treasonous crimes. “I will not allow American democracy to be undermined,” the Arizona AG haughtily proclaims in her press release. She then turns around and makes a deal with no conviction whatsoever, let alone jail.
Occasionally, judges still reject suspicious plea deals these days (see: Hunter Biden), but it is far rarer than it should be. The Georgia judge should have rejected Ellis’ first plea, as she actually never admitted that she committed a crime. Also, she was charged with a RICO conspiracy and instead was pled out to a non-moral turpitude (low-level) felony diversion.
There are no other facts to indicate this is anything but shameless (if not understandable) self-preservation on Ellis’ part. Defense attorney Leslie McAdoo Gordon called Ellis’ plea in Georgia a deal “so sweet that no rational defense lawyer could advise the client to reject [it].”
Unfortunately for the other defendants in the Georgia and Arizona cases, public discourse about jury trials often confuses the significant act of taking accountability with the procedural act of reaching an agreement with the prosecution. The former leads to the latter; the latter is not proof of the former.
Leftist lawfare prosecutors have been able to extort some plea deals in some jurisdictions by threatening big crimes and offering tiny punishments to different, tiny crimes. The Georgia and New York cases are both examples of this. Now add Arizona to the list.
It is a sad state of affairs for America. Prosecution has been flipped on its head. In a just world, facts backed by evidence are used to build charging decisions. In today’s deep blue court jurisdictions, charging decisions backed by agendized media are used to build public narratives.
