CT Blue

Multiple other media outlets I’ve read seem to agree with Truthout that Former Trump Lawyer’s Revelation is ‘Devestating for Trump, Legal Experts Say. This refers to the leaked proffer testimony of Jenna Ellis summarized as follows:

Former Trump lawyer Jenna Ellis told prosecutors in Fulton County, Ga., that a senior aide to the former president told her he was “not going to leave” the White House even after losing numerous legal challenges.

Ellis in a video of a confidential proffer session with prosecutors obtained by ABC News and The Washington Post said that Trump aide Dan Scavino told her “the boss” would refuse to leave the White House even though she told him that their cause was “essentially over.”

“And he said to me, in a kind of excited tone, ‘Well, we don’t care, and we’re not going to leave,’” Ellis recalled. “And I said, ‘What do you mean?’ And he said ‘Well, the boss’, meaning President Trump — and everyone understood ‘the boss,’ that’s what we all called him — he said, ‘The boss is not going to leave under any circumstances. We are just going to stay in power.’”

Now, I haven’t seen the whole video but I’ve seen her testimony characterized the same way multiple times. As I said in a recent post, maybe times have changed a lot since I was a practicing lawyer, but I’m having a lot of trouble figuring out why this is devastating.

First, I should state that I have no doubt that what she said was a true recounting of her experience, and that Scavino was absolutely conveying what Trump had said, either to Scavino himself or to others with whom Scavino had talked. But there’s still a slight problem. Herewith the definition of hearsay from the Oxford English Dictionary:

the report of another person’s words by a witness, which is usually disallowed as evidence in a court of law

Now, there are exceptions to the hearsay rule, but I don’t believe any apply here. Ellis would essentially be testifying that someone told her what someone else said. You could use that testimony against Scavino for any part he may have played in the plot to overthrow the government, but you can’t use it against Trump. There are good solid reasons for the hearsay rule, as if hearsay were allowed, there would be no way to subject the testimony to any type of substantive cross-examination, as the witness could simply maintain that he or she was simply repeating what she was told.

An interesting question about the Ellis testimony has to do with the identity of the leaker. I can’t see that anyone working for Fani Willis would have an interest in leaking it. I have the impression that the tapes would be shared with the various defendants, though I don’t know if that happened yet, and I suppose Ellis herself might have a copy. It certainly seems possible that, if they have it, the Trump people might have leaked it so they could make some sort of argument to the effect that it was leaked by the prosecution and therefore the charges should be dismissed or testimony excluded.

UPDATE: Apparently Fani Willis is fairly sure that no one in her office was the leaker. She wants a protective order, claiming that the “release of these confidential video recordings is clearly intended to intimidate witnesses in this case, subjecting them to harassment and threats prior to trial”. She’s right about the intimidation. I hadn’t cited that as a reason for the leak, probably because, once again, it wasn’t the sort of thing that was done back in the olden days when I practiced law.