Expert: Trump aide Dan Scavino may face "superseding indictment" after Jenna Ellis spills the beans

Legal experts speculated that longtime Trump aide Dan Scavino may be in hot water after former Trump lawyer Jenna Ellis implicated him to prosecutors in Fulton County, Ga. 

Prosecutors in Fulton County may seek to force Trump's former deputy chief of staff and long-term social media aide Dan Scavino, who ascended to the role from being a golfing caddy at Trump's golf course, to disclose confidential conversations or directives as part of their criminal investigation into the former president and 18 co-defendants' alleged efforts to overturn the 2020 election results in the state. 

"It may very well be that there's a superseding indictment with his name on it so that he will be an indicted defendant, but we will see," Glenn Kirschner, a former federal prosecutor, said of Scavino during an appearance on MSNBC's "TheReidOut."

"We're not completely beyond the subpoena phase of these cases because prosecutors, even after they return initial indictments, can continue to use the grand jury — continue to use the subpoena power to investigate others who have not yet been charged," Kirschner added.

"But it really does feel like both in Georgia and in D.C., at least, with respect to the first Donald Trump criminal trial, we are in the chute and moving toward trial, and the grand jury investigation piece and the opportunity to use subpoenas is sort of in the rear-view mirror at this point," he continued.

Ellis, who gave "proffer" testimony to the district attorney's office, excerpts of which were shared with the press, told prosecutors that Scavino told her of Trump's plan to remain in the White House despite losing the election and subsequent legal challenges. Ellis, along with former Trump lawyer Sidney Powell, Trump-aligned attorney Kenneth Chesebro and bail bondsman Scott Hall, struck plea deals with Fulton County District Attorney Fani Willis. 

"The boss is not going to leave under any circumstances," Scavino told Ellis at the time, according to her testimony. “We are just going to stay in power.”

“I said to him, 'Well, it doesn't quite work that way, you realize,'" she said in the video clip.

In a statement to MSNBC, Trump's lead counsel in the Georgia case, Steve Sadow, called the "purported private conversation" that Ellis recounted "absolutely meaningless."

Kirschner told host Joy Reid, however, that whether the chat was public or private isn't important. Rather, what matters is whether there's criminality involved.

"It doesn't matter if it was a private conversation or not," Kirschner said. "There is no sort of privacy exception to introducing at trial this kind of sharply incriminating information.

"I think the challenge becomes: Who did Donald Trump say this to? And do prosecutors in Georgia or federally, [special counsel] Jack Smith, have this statement in admissible form," Kirschner continued. "It's being attributed to Dan Scavino. Did Dan Scavino hear it out of Trump say it out of his own mouth? If so, it's a statement of a party opponent, and it's admissible.

"But somebody saying Dan Scavino told me that the president said this, that's hearsay; it's inadmissible," he added, noting the remaining questions to be answered are where is Scavino involved in the investigations and has he divulged that information to prosecutors.

Other legal experts also debated the extent to which prosecutors could use Ellis' proffer testimony against Scavino.

"If you are tempted to dismiss Jenna Ellis’s testimony about Dan Scavino on grounds that he is not an alleged defendant or co-conspirator in Fulton County, remember Scavino apparently testified to a grand jury in one or more of Jack Smith’s investigations before either indictment came down," MSNBC legal analyst Lisa Rubin wrote on X, formerly Twitter.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Ellis' recounting of her conversation with Scavino is "solid evidence for prosecutors," New York University law professor Ryan Goodman tweeted, outlining in a thread why the Dec. 11, 2020 conversation, which occurred after the Supreme Court rejected a lawsuit challenging the election results in key swing-states.

"It is also after that Supreme Court loss on Dec. 11 that Trump Campaign lawyers bowed out of the false electors scheme. They knew the legal avenues were now closed," Goodman added.

He also addressed the question of whether Ellis' recounting is hearsay, highlighting federal rule of evidence 801 that says, "A statement that meets the following conditions is not hearsay: ...The statement is offered against an opposing party and ... was made by the party’s coconspirator during and in furtherance of the conspiracy."

Conservative attorney George Conway, however, argued that it is unclear that Ellis' statement about Scavino's comments can be admitted as evidence against Trump. But if "it were established that he was a coconspirator," he added, "then Scavino's statement could be admitted for the truth of what he says" Trump said and can only then be used to establish the former president's intent.  in order for rule 801 to come into play and make Ellis' statement non-hearsay, Conway later reiterated, "Scavino has to be shown to be a conspirator."