Arizona Attorney General Kris Mayes announced last week that a former attorney for the 2020 Trump campaign has agreed to cooperate in the prosecuting of the so-called "fake elector" case. In exchange, the charges against Jenna Ellis will be dismissed.
Also last week, one of the indicted fake electors pleaded guilty to a lesser charge, and we learned that prosecutors had asked grand jurors not to indict former President Trump in the case.
To get a sense of what all of this means, The Show spoke with Paul Charlton, a former U.S. Attorney for Arizona, who’s now a partner at the law firm Dentons. The conversation started with what it says about the case to Charlton that Ellis decided to cooperate with prosecutors.
Full conversation
PAUL CHARLTON: So it is like so many of the cases that surround former president Trump, a very ordinary prosecution and a very extraordinary prosecution because it involves a former president, at least in this instance as an unindicted co-conspirator. So it is quite usual, it is normal for prosecutors to seek cooperation agreements in any case.
And so in this instance, it follows the same pattern, Jenna Ellis, a lawyer who was already pled guilty in the prosecution in Atlanta, Georgia, has agreed in exchange for dismissal of her case to cooperate in this prosecution. Cooperation is an important element in any multi defendant conspiracy case. So that is in this instance, very much like any other prosecution in this state.
MARK BRODIE: Given the fact that as you say, she had already taken a similar kind of deal in another state, did that make her sort of a prime target for prosecutors to approach and say, hey, would you be interested in helping us out in exchange for X, Y and Z?
CHARLTON: It did. And you can be certain that there are similar conversations taking place with other defendants in this prosecution as well. There are a few defendants who I'm sure might consider this in a very serious way and any number of them who might say, no, we are not willing to co-operate or plead guilty. So again, this is, this follows a pattern that takes place in prosecutions throughout this country every single day. The aberration, the unusual aspect is the fact that it involves an election and involves at least as an unindicted co-conspirator, former President Trump.
BRODIE: Right. Well, and so to your point, we already saw one of the so-called fake electors agree to plead guilty to a lesser charge in an effort to sort of move beyond this, I think is, is the language that her attorney used. Is that significant in any way that one of the actual indicted fake electors said, OK, I'm, I'm done.
CHARLTON: It is. And what you sometimes see in conspiracies that involve or these cases that are charged as conspiracy that involve multiple defendants, is it a kind of momentum can gather behind these prosecutions. And what prosecutors will typically do is offer relatively good deals early in the case. So you'll see Jenna Ellis got a dismissal in exchange for her cooper operation. One of the defendants got a misdemeanor and the felonies were dismissed. But later in the case, typically, as the case moves forward, as you get closer and closer to trial, the deals are not quite as good.
BRODIE: I'm curious to get your take on the news that came out that apparently prosecutors in this case had asked the grand jury or at least suggested that they not indict former President Trump. Is that, is that something that is, that is typically done that that prosecutors presenting a case will say here's the evidence, but you know, let's not deal with this person.
CHARLTON: It is something that prosecutors will do. And and in this instance, the prosecutor offered two reasons for not charging former President Trump, even though the pleadings show the prosecutors were inclined to bring charges against former President Trump. First, the prosecutor said there is a federal policy known as the Petite Policy which generally generally prohibits federal prosecutors from charging a defendant who has already been charged in a state case with a very similar offense. So it's a kind of, if you will, way to take care of your resources to make sure that you're not duplicating efforts.
It is an awkward fit to say as the prosecutors did here that the Petite Policy would discourage a prosecution of former President Trump because it is, as I say, a federal policy, not a state policy. So the more convincing argument though, and the more convincing reason that the prosecutor gave the grand jurors here was that there wasn't sufficient evidence to go forward with charges now. And what, what does that mean?
Well, the grand jurors felt that there was sufficient evidence to show that there was probable cause to believe that former president Trump committed a crime. But prosecutors when they go to trial, not before a grand jury, but before a trial jury have to prove their case beyond a reasonable doubt, a much different quantum of evidence, a much higher burden of proof. So the prosecutor here was telling the grand jurors, listen, there's this policy, the Petite Policy, that's fine. But there's also a concern about whether we have at this date sufficient evidence to try to take to trial and to convict former President Trump.
BRODIE: Is it safe to say that that consideration was maybe even a little stronger, given who the potential defendant would be a former President of the United States?
CHARLTON: I think the way I would say it is this, that another aspect of prosecution both in the state Attorney General's Office, like a local county attorney's office and, and the U.S. Attorney's Office is not just that you have proof beyond a reasonable doubt, but that there is in addition to that a likelihood of success. So, what does that mean here?
Well, former President Trump, is it popular enough that you could have a number of trial jurors who would want proof beyond a reasonable doubt? And even more so perhaps so, while the prosecutor said as of the time of this indictment's return, we don't have sufficient evidence. It still leaves open the possibility that as we were just talking about mark with additional cooper operation with additional evidence, they may find sufficient evidence to prove their case beyond a reasonable doubt, even in a jurisdiction where former President Trump has so many supporters.
BRODIE: So knowing what we know now about how this case has proceeded so far, I'm curious what you a, a former prosecutor, state and federal, what are you looking for, to sort of divine, you know, and read the tea leaves about how this might be going, what are you going to be looking for going forward?
CHARLTON: Well, let me begin with this. I assume good faith because in my experience, 99% of prosecutors act in good faith. And what that tells me is that the prosecutors here have not only proof beyond a reasonable doubt, but a reasonable likelihood of success at trial. Now, there's still the presumption of innocence, every single one of these defendants are as, as dictated by our constitution, presumed innocent.
But if you're asking, how do I feel about this case? Experience tells me that prosecutors must have a high degree of confidence in a good outcome for the prosecution here or this case would not have been brought. That's how I see this. Having said all of that, jurors can be unpredictable. And as we talked about, this is a state in which there are a number of supporters of former President Trump.
So if I were just standing back and I am just standing back, don't have any clients involved in this watching this case proceed. I expect that the prosecutors brought this case because they believe they have enough evidence to prove their case beyond a reasonable doubt that they believe that there is a likelihood of success. But I also believe that they have enough humility. And I, this is something that experience teaches you to know that you cannot predict what juries will do. So we'll see how this turns out. We'll see whether or not prosecutors can overcome the burden.
We'll see if there are more individuals who come forward and agree to cooperate, which would increase the likelihood that the prosecutors may find themselves successful before a jury at the end of the day.
