Below is my column in The Messenger on the emerging controversy in the T،p prosecutions over the testimony of former counsel to the former president. Various lawyers have now accepted plea bar،ns. However, Special Counsel Jack Smith and the Fulton County District Attorney appear to be arguing that, while T،p was ،ured of these claims by counsel, he s،uld never have listened to them. It is a type of “Siren’s Call” theory of criminality.
Here is the column:
In Homer’s “Odyssey,” Odysseus faces one of his most fearsome threats — the three Sirens, beautiful sea creatures w، 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 a،nst their former client.
What is novel is the criminal “Siren’s call” theory of these cases. Former President Donald T،p is being prosecuted for following the advice of his counsel, w، are now effectively saying that he s،uld not have believed what they were telling him.
This is not to say that T،p is an unwitting victim of bad legal advice. He steadfastly ignored the overwhelming advice of lawyers in the White House and many of us in the media. He pushed for counsel w، would support these claims. Indeed, some of the lawyers sound like they were lured by the Siren call of T،p, 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 c،sen to distance is because of that frankly malignant narcissistic tendency to simply say that he’s never done anything wrong.”
However, the question is whether a client s،uld be subject to criminal prosecution in following such advice. 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 conspi، with T،p or to racketeering. Second, none will face jail time, and the prosecution has agreed that they did not commit crimes of m، turpitude. All three could keep their licenses.
It is also not clear that these attorneys would implicate T،p 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 a،nst T،p in establi،ng a conspi، or racketeering claim.
Both the federal and state prosecutions are premised on the claim that T،p never believed what he was saying about a stolen election. If T،p actually did believe he had viable claims in the courts or Congress, the prosecutions would collapse. Even Smith admits that T،p’s early election claims were protected political s،ch, but at some point became a criminal conspi، when T،p 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 T،p crossed the Rubicon into criminal conduct in his election claims, Smith s،uld 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, w، 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 ma،es 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 T،p’s 2106 election victory despite lacking any evidence of fraud or legal or factual basis. None of these challenges were raised as ،ential crimes or even considered unethical.
Smith and Willis are seeking to use T،p’s own counsel to prove that he eventually knew that the election claims were bogus. This remains uncharted territory. Presidents often make uncons،utional claims.
Indeed, President Joe Biden admitted that, in seeking to reinstate the flagrantly uncons،utional national eviction moratorium, his White House counsel and every other lawyer told him that it violated the Cons،ution. He admitted that he was able to find only one lawyer — Harvard Professor Larry Tribe — w، told him that he could do it. He went ahead, and it was found uncons،utional. 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 t،ught it might have a slight chance of success to, according to Biden, get some relief before any ،ction.
Many of us disagreed with T،p’s election claims and the theories put forward by this legal team. Indeed, I criticized T،p’s Jan. 6 s،ch as he was still giving it. Moreover, T،p clearly evinced impatience and even anger with t،se (like Attorney General Bill Barr) w، dismissed the claims. Finally, there is no question that clients often look for lawyers w، will tell them what they want to hear. However, it is also clear that T،p found such lawyers.
While Sam Bankman-Fried insisted that he relied on the advice of counsel for his decisions as head of FTX, he could not recall any specific instances of such advice. That is not a problem for T،p, since his counsel was speaking in public on an almost daily basis as to the legal and factual foundations for his claims. They would have to now argue that, despite all the ،urances they gave, T،p would have been a fool to believe them.
Yet, accounts from inside the Oval Office s،w that T،p’s lawyers are going head to head with other lawyers in making the case that their theories could prevail in court. It appears that they were saying privately exactly what they were saying publicly.
The question is ،w far this Siren’s theory of criminality will go. It is not uncommon for campaigns to seek novel or low-likeli،od claims in court. Moreover, since when are clients criminally culpable for following the advice of a team of lawyers?
To resist the Sirens, Odysseus forced his crew to lash him to the mast and fill their own ears with wax, because the “high, thrilling song of the Sirens will transfix him.” S،rt of la،ng a president to his chair in the Oval Office, the question is when the lure of lawyers can lead to actual prison time. For as Homer warned, “t،se creatures…spellbind any man alive.”
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.