“I was just following orders”: Ex-prosecutor calls out Trump co-defendants for using “Nazi defense”

Three defendants facing charges alongside Donald Trump in a sprawling Fulton County racketeering indictment are pointing their fingers at the former president and his campaign for their role in the fake electors scheme, signaling that they may be willing to cooperate with the prosecution in attempts to score a "sweetheart deal," according to legal experts.

Former Georgia GOP Chair David Shafer, former Coffee County GOP chair Cathy Latham and state Rep. Shawn Still argued in court filings last week that their actions were carried out under the guidance of the Trump campaign, according to The Wall Street Journal. The three defendants stated that when they submitted documentation claiming their ability to legitimately cast Electoral College votes for Trump, they were acting according to the campaign's instructions.

"Mr. Still, as a presidential elector, was also acting at the direction of the incumbent president of the United States," an attorney for Still argued in a court filing. "The president's attorneys instructed Mr. Still and the other contingent electors that they had to meet and cast their ballots on Dec. 14, 2020."

Latham has similarly asserted that she was acting "at the direction of the President of the United States" and so has Shafer, who contended that he "and the other Republican Electors in the 2020 election acted at the direction of the incumbent President and other federal officials."

The Georgia Republicans could also claim at trial that they acted at the direction of Trump or his close aides, which would be "bad news" for Trump, as such testimony would serve to draw the sprawling scheme alleged in the indictment more tightly together, with Trump at the top, former federal prosecutor Kevin O'Brien told Salon.

"At the same time, though, while such testimony could be a mitigating circumstance for the three defendants at sentencing, it's not a legal defense that would prevent their conviction," O'Brien said. "Each is properly charged with acting knowingly in violation of state law, especially since each held a position of responsibility either within the state Republican Party (Shafer) or within the state elections system (Latham and Still)."

Contending that they operated under the approval of the then-president and a team of his attorneys, the three Republicans are arguing that they should essentially be shielded from state prosecution, as they believed their actions were aligned with a federal role.

Shafer and a group of 15 fellow Republican electors convened at the state capitol on Dec. 14, 2020, and signed a document falsely declaring that Trump had won Georgia. Trump and his allies are now facing charges relating to their alleged roles in trying to overturn the results. 

"Their individual arguments are that they were acting as federal officers performing federal duties," former San Francisco prosecutor Lateef Gray told Salon. "As such, they feel that they are immune from prosecution in state court."

The defendants want their cases removed to federal court, Gray added, explaining that if this happens, they would then likely argue that they are immune from prosecution because they were acting "under color of their federal positions," meaning they were doing what their federal positions allow them to do.

There's no defense to a "blatantly illegal action," like falsely passing oneself off as duly elected presidential electors, who say that Trump directed or asked them to do it, O'Brien said. "They should have known better."

Former federal prosecutor Neama Rahmani agreed and said that "this is essentially the 'Nazi defense' of 'I was just following orders.'"

"Legally, you can't just direct someone to break laws," Rahmani said. "On the other hand, if the most powerful person in the free world, or their attorney, is telling you to do something, you'll probably do it. So this comes down to a question of whether jurors buy their argument. The legal term is mens rea, or 'guilty mind.' If the defendant persuades the jury that they genuinely thought they were doing something lawful, there isn't a basis for criminal liability."

Former Trump White House chief of staff Mark Meadows and a former Justice Department official Jeffrey Clark have also asked for their charges to be moved to federal court.

But neither of them have strong enough arguments to move their cases to federal court, especially the false electors, Mai Ratakonda, an attorney at the election rights group States United Democracy Center, told Salon. 

"I don't really see their attempts to remove the federal court being successful," Ratakonda said. "If a federal court judge decides that one or more of these co-defendants could have their trials moved to federal court, [this would raise the question of] does only that defendant get to move their case to federal court, or does the entire case against all of the defendants get moved to federal court?"

​​If the case is moved to federal court, the defendants could benefit from drawing a jury pool from more rural and conservative parts of Georgia, rather than predominantly liberal Fulton County. There's also the possibility of drawing a federal judge who Trump appointed. 

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The defendants in the Georgia election interference case are accused of pressuring elected officials into overturning Trump's defeat, arranging for individuals to declare him as the president through false "electors" in Georgia, tampering with voting machines and engaging in various actions aimed at undermining democracy, according to the indictment. These efforts were allegedly taken in an attempt to maintain Trump's presidency, despite his loss to President Joe Biden in the election.

But if one of the co-defendants decides to cooperate with the prosecution, they are likely to get "a sweetheart deal," meaning their charges will be "dismissed or minimized" in exchange for providing testimony against their co-defendants, Gray said.

That is the strategy that Fulton County District Attorney Fani Willis is employing here, Rahmani said. 

"Willis took the 'kitchen sink' approach, indicting 19 co-conspirators with RICO charges, putting maximum pressure on them to flip and cooperate," Rahmani said. "She doesn't want to try 19 people at once. With all of these defendants, there's no way the case is going to trial before November because they're going to raise all kinds of issues. The more defendants, the more difficult a case becomes."

He added that in Georgia, "it's a 'prisoner's dilemma' situation." While It's best for all of the defendants to collectively stick together with none of them flipping, individually, it's better for each person to cooperate. And "usually, the ones who cooperate first get the best deal."