Georgia prosecutors: Trump elector strategy was political — not legal — advice

Georgia prosecutors say a key Trump campaign legal adviser’s memos — which guided efforts to subvert the 2020 election despite former President Donald Trump’s defeat — cannot be shielded by attorney-client privilege because they were about politics, not law.

Fulton County District Attorney Fani Willis argued Tuesday that the memos by Ken Chesebro, one of 18 defendants charged alongside Trump in a sprawling racketeering conspiracy related to the 2020 election, were not about a litigation strategy or legal advice, which would typically be protected by confidentiality rules.

Rather, she contended, Chesebro had developed a strategy to derail the transfer of power from Trump to President Joe Biden by advocating efforts aimed at Congress, not the courts.

“[T]he animating concern was creating political strategy to be used in Congress, not the judicial branch,” Willis argued. “In particular, the January email begins with the premise that the judicial system has not allowed the Trump Campaign to accomplish its goals. The memo explicitly gives up on pursuing any judicial process in order to pursue political strategy in Congress.”

The argument sets up a crucial decision for Judge Scott McAfee, with potential repercussions for Trump and other attorneys like Rudy Giuliani and John Eastman who worked closely with the former president to undermine the 2020 election results. Chesebro contends that the memos should be excluded from his upcoming trial — set for Oct. 23 — because they were privileged work on behalf of his client, the Trump campaign.

Willis’ argument hewed closely to the rulings of a federal judge in California, who found that many of Eastman’s emails in the aftermath of the 2020 election were not subject to attorney-client privilege because of their political character — or because they were shared with non-lawyers and lost their confidentiality. That judge, U.S. District Judge David Carter, also found that some of Eastman’s emails would be disclosed to the House Jan. 6 select committee because they constituted evidence of a likely conspiracy between Eastman and Trump. Eastman is among the defendants charged alongside Trump and Chesebro in Georgia.

Chesebro’s string of memos began in November 2020, with an exhortation that the Trump campaign should convene slates of presidential electors in several swing states in which Biden defeated Trump, contending they would be a backstop if Trump were to prevail in ongoing legal fights.

But Chesebro’s memos took a turn in early December when he noted that Trump could use the elector strategy to prevail in the 2020 election even if his lawsuits failed — by using the Trump-backed electors to disrupt congressional proceedings on Jan. 6, 2021, the day that valid Electoral College votes were required by federal law to be counted.

Willis’ argument appears to be in some tension with the approach federal prosecutors have taken to cases related to the Capitol riot on Jan. 6. In those cases, advancing felony obstruction-of-justice charges against some alleged rioters, prosecutors have argued that Congress’ meeting to tally electoral votes was akin to a judicial proceeding.

Many defense attorneys have challenged that conclusion, but federal judges have generally sided with prosecutors on the point.

Willis, however, has other arguments for invalidating Chesebro’s claims of privilege. She notes that he disseminated his memos to figures far removed from the Trump campaign’s legal team, which effectively waives privilege. And they’ve all since been made public, she noted. In addition, Chesebro has not shown evidence of his attorney-client relationship with the Trump campaign or Trump himself, further casting doubt on whether the contacts would be privileged.

Lastly, Willis contended that all of the memos could be disclosed under the “crime-fraud” exception to attorney-client privilege. A grand jury, she noted, indicted Chesebro based on evidence connected to the memos, concluding that Eastman joined the alleged racketeering conspiracy based in part of the advice he was giving to the Trump team.