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Former Trump lawyer Jenna Ellis gave explosive information to Georgia prosecutors: Donald Trump wasn’t going to leave the White House after he lost the 2020 election to Joe Biden. But can she give that same testimony at trial against the former president?
What complicates the answer to this evidentiary question is that the information she conveyed to prosecutors didn’t come from Trump himself. Rather, according to Ellis — who pleaded guilty last month in a no-jail deal — it came from Trump adviser Dan Scavino, who isn’t charged in the racketeering indictment. That doesn’t necessarily mean a jury can’t hear Ellis make the incendiary claim; it just requires some additional analysis to see whether she can.
As a general matter, even non-lawyers know that it’s hearsay to relay something someone else said. At first blush, that might seem to render this testimony from Ellis off-limits. But as lawyers know, that baseline rule doesn’t end the inquiry.
As a general matter, even non-lawyers know that it’s hearsay to relay something someone else said.
For example, Fulton County District Attorney Fani Willis’ office might seek to cast Scavino’s purported comments as admissions by a party opponent, which aren’t excluded by the hearsay rule. One type of such an admission is a statement by a co-conspirator of a party that’s made “during the course and in furtherance of the conspiracy.” Prosecutors would argue that Scavino was a co-conspirator whose statements supposedly made to Ellis were in furtherance of the alleged Trump-backed conspiracy. (Trump has pleaded not guilty and doesn’t have a trial date yet; Scavino doesn’t appear to have publicly commented on Ellis’ statement to prosecutors.)
Of course, the parties would argue over, among other things, whether the statements at issue were “in furtherance” of the alleged conspiracy. On that note, Georgia courts have applied “a liberal standard in determining whether a statement is made in furtherance of a conspiracy, and statements that further the interests of the conspiracy in some way meet this standard,” though Georgia courts also have recognized that a statement that merely “‘spill[s] the beans,’ discloses the scheme, or informs the listener of the declarant’s activities does not constitute a statement in furtherance of the conspiracy.”
Like with many other aspects of criminal cases, as we’ve seen displayed by the varied jurists presiding over Trump’s prosecutions, the trial judge is afforded discretion on these sorts of calls.
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