September 7, 2023
Dear Mr. Chesebro:
We have observed your ongoing travails in the criminal justice system at the federal and state level. As experienced defense counsel, we write with serious concerns about your decision to proceed to trial in Georgia. Your current path represents a grave threat to your liberty. We urge you to reconsider for that purpose alone.
We have watched as you were indicted in Fulton County, Georgia on August 14, thirteen days after being included as “Co-Conspirator Five” in the federal indictment against former President Trump. We then watched as you pleaded not guilty in Fulton County, asserted your speedy trial rights under state law, filed an unsuccessful motion to sever your trial from that of co-defendant Sidney Powell, and most recently filed a motion to dismiss under the Supremacy Clause. We do not seek to weigh in on the merits of the individual Georgia charges pending against you. Instead, we are focused here on what the best legal advice would mean for someone in your position, and how to effectuate the optimal strategy.
First, we must acknowledge that we are not your lawyers. Instead, we are merely experienced defense counsel with a passing interest in the affairs of the day. Nothing we write here is meant to suggest that you are not being represented ably by excellent counsel who are focused on your best interests. Rather, we humbly offer our outsider’s perspective on what is a legal and personal conundrum. We are only able to write based on facts in the public domain. But, nonetheless, we offer our opinion here on how to approach your current predicament, and we do so focused resolutely on one interest only: your liberty.
Your defense strategy should pay little attention to whom you voted for in 2020, or your current political affiliations. You do not want the political adrenaline of an aggressive defense to cloud sound strategic judgment, and God forbid you are just a pawn in a political figure’s melodrama. So, while there are some loud voices in Georgia and beyond who herald your indictment as a long–overdue measure of justice, and others who see it as a partisan ruse to undermine the current leading Republican presidential candidate, you must drown out them all. Instead, we beseech you, think of one and only one thing: your liberty.
As an appellate lawyer, you have probably not spent much time, or any time at all, inside a prison. But as seasoned defense counsel and former prosecutors, we have. Believe us when we tell you that prison is not where you want to spend any amount of time, much less a minimum of five years or the rest of your life. So, below we outline a global strategy to avoid that outcome. One that accounts for your exposure in Georgia, in the federal case, and possibly other state criminal prosecutions that might arise. You probably will not like our strategy, and neither will your political sympathizers, but this strategy is not borne from political ideology, nor does it serve any political purpose or aim to be liked. Instead, it serves the sole and pragmatic interest of your personal liberty.
Here is how we assess your current situation. You face criminal charges in the State of Georgia on seven counts. The state alleges that you conspired: to impersonate public officials by having impostors hold themselves out as qualified presidential electors; to forge and file a false document that purported to be a “certificate” of Georgia’s 2020 electoral votes; and ultimately, to unlawfully change the outcome of the 2020 presidential election. The facts underlying such a conspiracy, if it indeed existed as alleged, could astonish all Americans, particularly the jurors, voters, and citizens of Georgia especially as you are an outsider who allegedly worked to disenfranchise members of their community.
Specifically, jurors at your trial would presumably be instructed by the judge that in Georgia (as in every other state) the law requires that presidential electors are chosen in accordance with the state’s popular vote. With this instruction in mind, jurors would hear evidence and testimony that you were the architect of a plan to put forth an “alternate” slate of electors that would be sent to the United States Senate in direct renunciation of Georgia’s popular vote.
The prosecution would likely present evidence that you were not interested in investigating claims of legitimate voter irregularities, but that instead you sought to deny the democratic transfer of power. Your December 6, 2020 memo to James Troupis would surely be entered into evidence, and jurors would read your words: “it is important that the alternate slates of electors meet and vote on December 14 if we are to create a scenario under which Biden can be prevented from reaching 270 electoral votes.” Jurors will also read your December 13 memo that you sent to Rudy Giuliani, a document that a federal judge found “both intimately related to and [that] clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021” and “likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States.”
It is worth noting that it is difficult at trial for any attorney, even the most skillful and experienced, to rebut express statements made by their clients, especially when they are in writing. Written admissions are among the most damning types of evidence. Moreover, the prosecution would remind the jury that, by the time the slate of impostor electors met on December 14pursuant to your plan, the legitimate state officials in Georgia had already certified the state’s official election results for President Biden, and no court had invalidated these election results or even called them into question (see House Select Committee final report, at 342).
Given these facts, and the other admissible evidence of your scheme, including what is outlined in the August 1 federal indictment, it appears that the prosecution in Fulton County, Georgia has a lot to work with. This means that, barring jury nullification, chances are you will be convicted. And, even if you really want to roll the dice with the jury, the federal case looms; that must be factored in here. Yours is a Damoclean situation.
So, what is the best path forward to avoid prison time given the very tough position you are in? We think you should plead guilty to the Georgia charges and cooperate in that case, contingent on a promise of no prison time.[1] Simultaneously, we would bring you in to meet with Special Prosecutor Jack Smith’s team, where you would proffer, truthfully answering every one of their questions. In the federal case, we would seek immunity for you in exchange for your cooperation, and if that did not work, we would seek a cooperation agreement with a guarantee of no prison time. Those are rare (usually the agreements are structured so that your sentence would be determined by the District Court judge) but, given the stakes here, your importance to the government’s case, and that you are not, as of now, federally indicted, we would surely try. Whether or not we succeed, you should still cooperate; cooperation is your best chance of avoiding or significantly minimizing any federal prison time. A global cooperation deal would also put you in the best possible position to achieve a non-prison disposition should any other state decide to prosecute you.
You may think that we are underestimating your legal team and their trial prowess in advising you to fold. But critically (and this is central to our recommended strategy here), even if you remain convinced beyond a shadow of a doubt that you will prevail at trial in Georgia, and even if you by some miracle do prevail through jury nullification or otherwise, you still are facing significant potential federal criminal liability. The theoretical possibility of an acquittal in Georgia will not blunt that reality. And remember, if you testify in your Georgia trial, everything you say will be dissected, analyzed, and examined, only to be used against you by the Department of Justice.
Indeed, although it appears that federal prosecutors already have ample evidence against you from their grand jury investigation, plus the evidence developed by the House January 6 Select Committee (including testimony from Trump Campaign lawyers), the federal prosecutors will take notice of every word spoken and every piece of evidence admitted during your trial in Georgia.
In the federal case, your exposure is real. Former President Donald Trump has been charged under three federal statutes with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against rights (e.g., to vote and have one’s vote properly counted]. By our reading of the facts, you could colorably be charged with each of these crimes, as the other co-conspirators followed a plan of your design, the very plan that you sketched out in your November 18, December 6, December 9, and December 13 memoranda (including not only the false electors scheme, but also the scheme to have the Vice President abrogate the Electoral Count Act and his constitutional duties).
While you may insist that your memos were at worst a good faith, misguided academic or theoretical exercise in stretching statutory interpretation to its legitimate outer limits, your actions as outlined in the indictment in furtherance of the conspiracy appear to belie such an assertion. Similarly, claims to have been simply acting as a zealous lawyer will likely fall flat with the Georgia and DC jurors. Your own writings appear to suggest that you are someone who was swept up in advocacy for a cause, not a client; the Trump Campaign attorneys have testified that they had disavowed your tactics by the time the false electors met (House Select Committee final report, at 347-48); your presence alongside Alex Jones at the Capitol on January 6th, and your late December email to John Eastman saying “odds of action before Jan. 6 will become more favorable if the [Supreme Court] justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way” — all may count heavily against you in the eyes of a jury.
Your attorney’s recent motion to dismiss suggests that your defense centers on the notion that pending litigation somehow provided legal support for the creation of alternate or provisional electors. We think that this defense is likely a legal dead end for you as well. The other Trump Campaign lawyers obviously did not agree with you after the Supreme Court ruling on December 11. Indeed, Matt Morgan testified that your plan had pivoted from provisional or alternate electors into one that would proceed with or without successful litigation. That pivot is also reflected in a close reading of your memos. Additionally. you and Giuliani are also alleged by prosecutors to have made fraudulent misrepresentations to persuade Republican electors that their certifications would be contingent on successful litigation (federal indictment paras 60 and 61), and you are alleged to have participated in filing litigation as a “pretext” to give a patina of legitimacy to the electors scheme (federal indictment paras 60 and 64). In short, it would be a false hope, in our view, to rest your liberty on this line of defense as well.
Thankfully, however, your actions evincing your participation in the charged conspiracy were taken in concert with individuals who are much higher-profile targets of the investigation: Giuliani (charged with 13 counts) is alleged to have lied in his presentation to the Judiciary Subcommittee of the Georgia State Senate and falsely claimed that 10,000 dead people had voted in the state; John Eastman (charged with 9 counts) is alleged to have urged legislators to decertify the state’s lawful electors based on these allegations; and former President Trump and Mark Meadows are alleged to have called Georgia Secretary of State Brad Raffensperger and threatened him with criminal prosecution if the secretary would not “find 11,780 votes” to change the state’s election outcome. These allegations arguably make these individuals more culpable than you, as they appear to have posed a greater threat to the survival of American democracy than perhaps you did (and indeed their names appear above yours in the charging document). That makes you an ideal cooperator. Your cooperation could help the prosecutors in Georgia and DC convict these more significant targets.
Accordingly, Mr. Chesebro, you are at a critical crossroads, one where your decision in Georgia now will impact the rest of your life. And we would urge haste. The earlier you cooperate in Georgia and with the federal authorities, the more valuable to them you are, and, crucially, the more likely you are to preserve your liberty.
Now, you and your counsel may be thinking that we are underestimating what appears to be your current strategy: exercising your speedy trial rights in Georgia (hoping to put the prosecutors back on their heels) and picking a jury with at least one sympathizer, all with the aim of an acquittal or a mistrial. Next, according to your apparent strategy, is hoping for a Republican victory in the 2024 presidential election — even better if it is Trump. That Republican president then could appoint an Attorney General who would shut down Special Counsel Jack Smith’s federal prosecutions and investigations. Or that the president could issue pardons to anyone charged or convicted by that point.
While this strategy is ambitious and might hew to your political preferences, as lawyers it feels more like magical thinking. There are too many contingencies here for our comfort level, especially when confronted with something as paramount as your liberty. Call us cowards, but when focusing only on your liberty interest, unclouded by the blush of your political indignation or any concern with the future ambitions of Trump, we would chart a more conservative path. And remember, if only one of these things goes against plan, you will likely find yourself in prison: If you are convicted in Georgia or another state, neither Trump nor any other president can pardon you for a state conviction. Indeed, if Trump were elected, the Georgia case and any other state criminal procedures might pause for him for four years while you and other defendants are left holding the bag. If you are acquitted in Georgia, but convicted in the federal case and a Democrat is elected, you will likely land in prison. A future DOJ might well reopen what it considers a righteous case shut down for political reasons, especially since the Special Counsel obviously believes you engaged in myriad crimes.
One more variable. At least one (and probably several) of your co-defendants in Fulton County will cooperate with the government. With forty-two counts leveled against nineteen similarly situated criminal defendants (plus 28 unindicted co-conspirators), each with his or her liberty at stake, each with counsel ethically bound to represent their liberty interests (not the political interests of Trump or the Republican party) the odds that none of them will cooperate are exceptionally low. Cooperators will make your acquittal in Georgia and in the federal case that much harder to obtain.
There is so much to think about. But – if we were your counsel – we would advise you to swallow hard, cooperate, stay out of jail, and spend the rest of your life a free man.[2]
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[1] Even if you cannot charge bargain with the Georgia prosecutors and plead to a lesser charge with no mandatory minimum jail term, Georgia state law contains an uncommon provision that grants trial judges the discretion to probate sentences even where a mandatory minimum otherwise applies. (See GA Code § 17-10-1: “The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper…”).
[2] We are doubtful that, if convicted of any of the charges you are facing, you will be able to practice law again (we assume that your law licenses in states where you are admitted to practice will be suspended). Perhaps you could teach, write a book, or go into politics yourself. All of these options are easier to pursue outside of a prison cell.
Editor’s note: Just Security is publishing this article alongside Thomas Green, The Best Defense: How Attorneys Advise Clients Through the Mental Process of a Plea Bargain, September 7, 2023