WASHINGTON — As Donald Trump’s co-defendants and associates take guilty pleas and promise to serve as prosecution witnesses, the coup-attempting former president’s window for pleading guilty himself to avoid prison time may be closing.
“Pleas are like fish, and not like wine,” said Norm Eisen, a White House lawyer during the Barack Obama administration who worked on Trump’s first impeachment for the House. “They do not get better with the passage of time.”
For decades, the unwritten rule that evolved to govern an overburdened criminal justice system has been that defendants who admit their guilt are allowed to take a plea to a less severe crime and are given a lenient sentence, sometimes with no jail time at all.
But defendants who insist on taking their case to trial and are subsequently convicted by a jury are not afforded that privilege; instead, they are given a prison term specified by sentencing guidelines, which can often amount to decades behind bars or even life with no chance of parole.
“Judges always sentence defendants more harshly if they refuse to take responsibility for their actions and instead challenge the charges at trial, particularly if they testify falsely on the witness stand,” said Renato Mariotti, a former federal prosecutor.
In recent days, a trio of Trump co-defendants have grabbed the opportunity to avoid prison time with guilty pleas in the Georgia racketeering case brought by District Attorney Fani Willis, which accuses Trump and 18 others of conspiring to overturn the 2020 election he had lost in the state. Kenneth Chesebro and Jenna Ellis pleaded to felonies, while Sidney Powell was allowed to plead to misdemeanors with the prospect of having the conviction expunged entirely after her probation period.
Additional plea deals are potentially in the pipeline already.
“At some point, the no-jail pleas that Willis is offering will turn into pleas that require jail time,” Eisen predicted.
Defense lawyers for Trump did not respond to HuffPost queries. Nor did his campaign advisers.
One longtime informal adviser to the former president, though, said a guilty plea by Trump, who is currently the front-runner to win the 2024 GOP presidential nomination, was out of the question. “He will never plead,” the adviser said on condition of anonymity.
Mike Davis, a lawyer who informally advises Trump on legal matters, said that Trump is innocent and therefore has no business taking a plea, and that Willis giving deals to co-defendants proves that her case is weak. “These plea deals are evidence Fani Willis overplayed her hand,” Davis said. “She’s looking for a way out.”
Other lawyers strongly disagree and believe that each co-defendant who accepts a plea agreement gives Willis an even stronger case — and makes it ever harder for each subsequent defendant to obtain a favorable deal.
What’s more, Trump may find that even if he were interested in a plea deal, prosecutors may not be willing to offer one.
George Conway, a lawyer who helped bring the sexual harassment lawsuit against former President Bill Clinton that led to his perjury impeachment, said the two coup-attempt cases involving Trump — Willis’ in Georgia as well as the federal case brought by special counsel Jack Smith — are more akin to prosecutions against organized crime families. In those, low-level participants are given light sentences in return for their help prosecuting more prominent mobsters.
“His problem is he’s the big fish. He’s got no one to offer up,” Conway said.
Glenn Kirschner, a federal prosecutor for more than two decades, said that given the nature of Trump’s actions — a literal attempt to end democracy by remaining in power despite losing his election — he should not be offered a plea deal in exchange for a light sentence.
“I do not believe the rules of prosecutorial convention should or will apply to Trump. If the mob boss pleads guilty, he still goes to prison for a long time,” Kirschner said. “To deter future aspiring dictators, Trump must be shown no leniency.”
In any event, Trump himself appears to have staked all his efforts to stay out of jail on his presidential run. Should he win the White House again in 2024, he would almost certainly use his power over the executive branch of the federal government to end both of Smith’s prosecutions — the one stemming from the Jan. 6, 2021, coup attempt as well as an unrelated indictment for Trump’s refusal to return secret documents he took to his Florida country club. And although Trump, who has already pleaded not guilty in the various cases against him, cannot order an end to the Georgia prosecution or a separate one in New York for his falsification of business records to hide a $130,000 hush money payment to a porn star, his status as president would effectively put them on hold until he left office, legal experts agree.
“His smartest play is — and it’s cynical, it’s wrong, it’s bad for democracy — would be to make a play for the White House,” Eisen said.