Of Course Sidney Powell Was Extorted, That’s How It Works.

Yes, of course former Trump lawyer¹ Sidney Powell was extorted by the prosecution into accepting a plea bargain. If by “extorted,” you mean she would risk more severe consequences if she didn’t agree, because that is how it works in our criminal justice system, of which Ms. Powell finds herself on the least pleasant end.

Every day, in courtrooms across America, defendants forego their right to a jury trial and agree to plead guilty to fewer or lesser charges, or in exchange for a more favorable sentence.  While all defendants have a right to take their case to trial, only a very small percentage do. Most cases plead out. And when a defendant accepts a plea bargain, the judge engages them in an extensive, under oath Q&A on the record to ensure that they have weighed their options and really want to do so. Giving up a constitutional right means that it is absolutely imperative that the record is clear that the plea is entered voluntarily, and of the defendant’s own free will.

Sidney’s was.

Note questions 10, 11, and 12, designed to make absolutely sure the defendant understands what they’re doing. I was not privy to Powell’s plea hearing, but I’d bet that she was also asked out loud by the court whether her plea of guilty was made voluntarily, without force, threats, coercion, or promises, other than as set forth in an accompanying written plea document. In this context, a threat does not mean “if you don’t take this plea you will go to trial and could be convicted of all the charges” or “if you don’t take this plea and are found guilty, I will not recommend leniency.” Those aren’t threats; that is simply the reality faced by defendants who go to trial. Sure, promises have been made; they will be contained within that document as well. It’s what the prosecution has agreed to do in exchange for the guilty plea.

The judge would also have inquired whether she’d had ample opportunity to consult with her counsel and whether she fully understood the nature and consequence of the guilty plea. In fact, in my experience, judges are so meticulously careful to make a record reflecting that a plea is voluntary that I used to tell my clients ahead of time not to misinterpret the judge’s questions as an attempt to talk them out of the deal or to suggest they shouldn’t take it. I’ve seen that happen, when a judge says “are you absolutely sure you want to do this?” and a defendant thinks the judge is hinting that they shouldn’t.

In my experience, a judge will often ask “are you pleading guilty because you are, in fact, guilty?” often followed by an allocution, meaning the defendant must lay out what he or she did. There are exceptions; an Alford plea, for example, doesn’t require any acknowledgment of guilt. The defendant in those cases is merely stipulating that they believe there is enough evidence to convict them at trial and a plea agreement is their best option. In Powell’s case, according to reports, she agreed there was a “sufficient factual basis” to support the 6 charges she pleaded guilty to.

Nevertheless, Powell’s “Newsletter” to her supporters included a link to this rubbish from the Federalist that contained the following blurb:

The bottom line is this: Willis basically extorted a guilty plea from Powell by charging her with seven serious felonies, including a RICO conspiracy count, two counts of conspiracy to commit election fraud, and one count each of conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state. With a jury culled from deep-blue Fulton County, the risk of a conviction on even one of the felony counts, and the consequential loss of her law license, would be just too great of a chance for any defendant to take — especially when the plea only involved misdemeanors that would be discharged from Powell’s record following probation. Under these circumstances, it would have been lunacy for Powell to have rejected the plea offer.

Yes, Sidney Powell had a lot to lose, as do most people who stand before a court facing criminal charges and the full power of the prosecution. But she got a sweetheart deal: 7 felonies dismissed in exchange for guilty pleas to 6 misdemeanor conspiracy counts, for which she will receive 6 years probation followed by expungement under Georgia’s First Time Offender law. She will have to pay fines and restitution, and testify truthfully in trials of codefendants, including Trump. What that will look like, in light of her recent posts on Twitter/X, will be interesting.

She was not actually extorted, any more than any other defendant who takes the opportunity to save their skin with a plea deal – especially when a prosecutor is willing to recommend no jail time.  The criminal justice system is complex and scary for folks and sometimes a plea deal is a life raft. Yes, it can even induce factually innocent people to plead guilty, if the deal is sweet enough. That’s why courts are so careful to build a strong record showing the voluntariness of a guilty plea. They want to make sure there’s no question that even the least sophisticated defendant understands what they are doing.

That includes Sidney Powell, former federal prosecutor.

1. Trump denies she was ever his lawyer. Do with that what you will.