Commentary: How an Arizona prosecutor's mistake may have stopped Trump's fifth criminal indictment

A recent filing in the Arizona false electors case shows how close Donald Trump came to being indicted there. It also illustrates the continuing legal risk to the former president and, even more so, to Trump confederates such as Rudolph W. Giuliani.

The Arizona case is one of five brought by state or local prosecutors against those who falsely claimed to be “duly elected and qualified electors” for Trump and those who orchestrated the scheme. Only one, in Georgia, included charges against Trump.

Arizona prosecutors charged 11 fake electors with nine felonies apiece and seven Trump allies who masterminded various postelection schemes. Former Trump attorney Jenna Ellis recently agreed to cooperate against the other defendants in the case, while fake elector Loraine Pellegrino pleaded guilty to a single misdemeanor count.

If this case follows the course of many other prosecutions of public corruption conspiracies, a cascade of similar pleas could follow. Unlike the Trump lieutenants implicated, the state, local and party officials and activists charged for their roles as fake electors may hope for a future in Arizona politics and can count on getting the best deals if they cooperate quickly.

As for the higher-level Trump loyalists charged — including Giuliani, Boris Epshteyn, John Eastman and Mark Meadows — Ellis’ cooperation agreement puts them squarely in the crosshairs. No low-level player, Ellis was front and center for all the allegedly illegal plotting. She could likely substantiate the allegations against the rest, especially Giuliani, with whom she worked closely, as the indictment notes.

And as for Trump himself, the filing that became public by happenstance Tuesday reveals that the grand jury in the case wanted to charge him too. But the prosecutor urged the jurors not to do so for specious reasons.

The prosecutor noted “clear indications” from the jurors that they had “an interest in pursuing a charge against” Trump. The New York Times reported that some of the jurors were upset that the prosecutor recommended against that. But the jury ultimately followed his recommendation in the indictment, naming Trump only as “Unindicted Coconspirator 1.”

The basis for the prosecutor’s recommendation is what’s known as the U.S. Department of Justice’s Petite Policy. The grand jury was shown a PowerPoint presentation reviewing the policy and then led through what the filing calls a “lengthy discussion” about it, after which the prosecutor said, “I think you should weigh this policy heavily. … And I know that may be disappointing to some of you.”

It’s even more disappointing to federal prosecutors who are familiar with the Petite Policy, which should have had no bearing whatsoever on the Arizona grand jury’s decision about whether to indict Trump.

Named after a 1960 Supreme Court case, the Petite Policy is a self-restraint that the Justice Department imposes on its own prosecutors concerning conduct that is already the subject of a state or local prosecution.

Because the federal and state governments are considered separate sovereign powers, the Constitution does not prohibit the department from prosecuting the same conduct charged by state prosecutors. But because such prosecutions cut against the spirit of double-jeopardy protections, the department has concluded that it will pursue such cases only when a state prosecution leaves the federal interest in the case “demonstrably unvindicated.” (I had a leading role in a reformulation of the policy when I worked at the Justice Department in the late 1990s.)

The Rodney King case was a paradigmatic example. The federal government concluded that the Los Angeles County district attorney’s unsuccessful prosecution of the officers who assaulted King had left its interest in safeguarding against such uses of excessive force “demonstrably unvindicated.” So it brought a civil rights case for the same conduct that resulted in conviction.

The Petite Policy says absolutely nothing about whether a state should bring charges in cases involving conduct that the federal government is also pursuing. It’s relevant only after a state has brought its own case, whereupon the Justice Department has to consider whether that prosecution serves the federal interest.

There is no way around the blunt assessment that the Arizona prosecutor misinformed the grand jury — presumably unintentionally — in dissuading it from its clear interest in indicting Trump. And at this point, it may not be possible as a practical matter to unscramble the eggs. The case has advanced considerably, with Ellis’ deal and Pellegrino’s plea signaling a possible endgame for many of the defendants.

I would expect additional pleas from the false electors as they confront the calculus of holding out and losing their shot at a relatively good outcome. For the other defendants, and especially Giuliani, the calculation may be different but no less grave.

Ellis was personally involved in all the alleged criminal conduct, starting with Giuliani’s initial phony November 2020 “hearing” in Phoenix. If she proves to be a credible witness, it’s hard to see how others in Trump’s circle escape conviction and prison sentences. Even if Trump wins the election, he would have no power to pardon or otherwise rescue the defendants from a state conviction short of calling in the 51st Airborne.

Indeed, the Arizona case poses real risks for Trump too. Giuliani, Eastman, Meadows and other Trump allies have so far escaped the most serious consequences for their alleged misconduct, but if they face likely conviction, all they really have to trade for favorable treatment is information on Trump, of which all of them — and especially Meadows — have plenty.

The former president to date has largely succeeded in evading accountability despite the four criminal cases against him. But events in Arizona are a reminder that these charges are not going away on their own and that for Trump, the election remains a grave battle for his liberty.

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Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series.@harrylitman