by Jonathan Turley
In Homer’s “Odyssey,” Odysseus faces one of his most fearsome threats — the three Sirens, beautiful sea creatures who lure sailors to their ruin with their seductive songs.
Special Counsel Jack Smith and Fulton County District Attorney Fani Willis have offered a modern version of the Sirens in the lure of bad lawyering. Three lawyers have recently pleaded guilty in Georgia, and they may join other former counsel in testifying against their former client.
What is novel is the criminal “Siren’s call” theory of these cases. Former President Donald Trump is being prosecuted for following the advice of his counsel, who are now effectively saying that he should not have believed what they were telling him.
Indeed, some sound like they were lured by the Siren call of Trump, led astray from their better legal judgment.
Kenneth Chesebro’s attorney, Scott Grubman, says that “Mr. Chesebro never believed in ‘the Big Lie’” and believes that Biden won the election.
Likewise, Sidney Powell has argued that “no reasonable person would conclude that my statements were truly statements of fact” as opposed to opinions.
Jenna Ellis recently stated “Why I have chosen to distance is because of that frankly malignant narcissistic tendency to simply say that he’s never done anything wrong.”
Yet these lawyers were not just confident but enthusiastic after the election in pursuing the claims they now repudiate. Moreover, their plea agreements had a number of notable omissions. First, none pleaded guilty to a conspiracy with Trump or to racketeering. Second, none will face jail time, and the prosecution has agreed that they did not commit crimes of moral turpitude. All three could keep their licenses.
It is also not clear that these attorneys would implicate Trump if called. They could prove more damaging to other defendants such as Rudy Giuliani, or they could still prove harmful to the prosecution’s overall theory. They secured no jail deals, but only agreed to testify truthfully. Some, like Ellis, may now have animus but lack evidence against Trump in establishing a conspiracy or racketeering claim.
Both the federal and state prosecutions are premised on the claim that Trump never believed what he was saying about a stolen election. If Trump actually did believe he had viable claims in the courts or Congress, the prosecutions would collapse. Even Smith admits that Trump’s early election claims were protected political speech, but at some point became a criminal conspiracy when Trump had to know that his claims were baseless.
The most dangerous aspect to the federal indictment is that Smith leaves the line entirely undefined for future cases. If Trump crossed the Rubicon into criminal conduct in his election claims, Smith should be able to point to the river on the map. Instead, Smith offers no limiting principle on when election claims move from the sensational to the criminal.
That is particularly concerning, since many election claims in the courts or Congress have been unfounded. For example, Marc Elias, who served as general counsel to Hillary Clinton’s campaign and played a key role in its secret funding of the infamous Steele dossier, challenged past elections on such grounds. After the 2020 election, he challenged a New York election by claiming that voting machines had flipped the results in favor of the Republicans through mistabulations.
Likewise, leading Democrats such as Rep. Jamie Raskin (D-Md.) sought to block certification of Donald Trump’s 2106 election victory despite lacking any evidence of fraud or legal or factual basis. None of these challenges were raised as potential crimes or even considered unethical.
Smith and Willis are seeking to use Trump’s own counsel to prove that he eventually knew that the election claims were bogus. This remains uncharted territory. Presidents often make unconstitutional claims.
Indeed, President Joe Biden admitted that, in seeking to reinstate the flagrantly unconstitutional national eviction moratorium, his White House counsel and every other lawyer told him that it violated the Constitution. He admitted that he was able to find only one lawyer — Harvard Professor Larry Tribe — who told him that he could do it. He went ahead, and it was found unconstitutional. It did not matter that Tribe has often been proven wrong on such claims or that Biden appeared to have doubts himself. It was enough that he thought it might have a slight chance of success to, according to Biden, get some relief before any injunction.
