What is a proffer, and why Defendant Trump should be very worried about two of them this week

Old runny-cheeks himself

Let’s get this out of the way upfront:  you don’t want to be in a position where making a proffer agreement is the best idea you have to keep your sorry ass out of jail.

Here’s another good one:  you would rather testify before a grand jury than have your lawyer call up federal prosecutors and tell them, hey, my guy wants to come hat-in-hand to your offices today with a proffer agreement.  That’s because usually, if you’re called to testify before a grand jury, you are not a target of the prosecution the grand jury is hearing evidence about.  You’re a witness.

Rudolph Giuliani, the former mayor of New York City and Defendant Trump’s one time lawyer, last week met with prosecutors from the office of Special Counsel Jack Smith and made a proffer – which is to say, Giuliani went to Washington D.C. and sat down with some very serious people who are thinking about charging him with crimes, and he said to them, here’s what I know about the real target of your investigation, Defendant Trump, and if I tell you what I know, would you please, please not charge me with a crime, or if you do, would you agree to charge me with a little bitty one that will keep me out of jail?

The New York Times reported earlier this evening that is exactly what Giuliani did last week: “The voluntary interview [with Giuliani], which took place under what is known as a proffer agreement, was a significant development in the election interference investigation led by Jack Smith, the special counsel, and the latest indication that Mr. Smith and his team are actively seeking witnesses who might cooperate in the case.”  The interview with Giuliani, which can precede a grand jury appearance by the interviewee, “touched on some of the most important aspects of the special counsel’s inquiry into the ways that Mr. Trump sought to maintain his grip on power after losing the election to Joseph R. Biden Jr.,” The Times reported.

Specifically, prosecutors for the Special Counsel questioned Giuliani about the scheme orchestrated by another of Trump’s attorneys, John Eastman, to get slates of fake electors appointed in contested states and put them before the Vice President of the United States in an attempt to create a situation that would throw the counting of electoral ballots on January 6 into the House of Representatives, or at least, return the business of appointing slates of electors to the legislatures in the contested states where Biden’s win could be reversed.

It has long been known that Giuliani played a role in attempting to influence state legislatures to appoint so-called alternate slates of electors for Donald Trump.  The idea was John Eastman’s, and Giuliani made repeated telephone calls to senior legislators in states like Pennsylvania and Wisconsin and Arizona, attempting to get them to go along with the scheme.

Prosecutors were also said to be interested in questioning Giuliani about a meeting in the Oval Office on December 20, 2020, between Defendant Trump, now-disbarred lawyer Sidney Powell, and Defendant Trump’s former national security adviser, Michael Flynn, during which a plan to have the military confiscate voting machines and declare martial law was discussed. 

Lawyer Eastman, currently in court in California fighting an attempt by the California Bar to take his law license away, met with Trump in the Oval Office several times to discuss the fake elector scheme.  The Department of Justice previously seized Eastman’s cell phone and subpoenaed his emails.  Eastman fought the subpoena on lawyer-client privilege grounds and lost in federal court and had to turn over his emails.

Also in talks to meet with prosecutors as part of a proffer agreement last week was Michael Roman, Defendant Trump’s former director of election day operations.  Roman is described in the Times story this evening as “instrumental in helping put together the so-called fake elector plan.”  It has been known that Roman tried to get slates of fake electors to Vice President Pence on January 6 before the Congress met to count and certify electoral votes.  Prosecutors questioned Roman’s deputy, Gary Michael Brown, before the grand jury about the scheme to put up slates of fake electors.  The fact that Roman apparently went to prosecutors with a proffer of testimony he could give to the grand jury means that he had been notified that he was a target of prosecutors and may be facing charges himself.

Another subject Smith’s prosecutors are said to have discussed with Giuliani during his proffer meeting was the role he played in the so-called war room at the Willard Hotel in the days leading up to the January 6 insurrection.  Also in the so-called war room at the Willard were Defendant Trump’s current legal adviser, Boris Epshteyn, rumpled podcaster and conspiratorialist Steve Bannon, and the aforementioned John Eastman.

Lawyers describe making a proffer as an attempt to “get out ahead” of a possible prosecution.  Another phrase lawyers like to use is “queen for a day moment,” meaning that anything you tell prosecutors as part of a proffer can’t be used against you in any possible future prosecution.  This means, of course, that suspects are well advised to tell absolutely everything they know about any possible crimes and the people who may have committed them, especially if the suspect was part of a conspiracy to, say, put together slates of fake electors and try to overthrow an election.  Or maybe the suspect might have been in a hotel room when phone calls were made between individuals working for Defendant Trump and people like Proud Boys and Oath Keepers making their plans for the actions they would take on, say, January 6.

So, two things are true about proffer agreements. A proffer works best for people under investigation for committing crimes when they include themselves in as many criminal acts or criminal conspiracies as possible, because a proffer is a kind of two edged sword: anything said by the person making the proffer can’t be used against him or her, but can be used against others.  It also means that everything you tell prosecutors, you will be made to tell a grand jury – anything you say during your proffer about the people you were working for or working with in the execution of a criminal conspiracy or scheme, like fake electors, for example, is fair game for prosecutors to ask you about.

The Giuliani and Roman proffer meetings with prosecutors are the best evidence so far that Special Counsel Smith is zeroing in on charging Defendant Trump with a conspiracy to interfere with the proper process of the federal government, i.e., the Congress, in its duties to count and certify electoral ballots on January 6.  The strength of that line of prosecution lies in the fact that they have talked to people who were in the room with Defendant Trump when the fake elector scheme was discussed, among them Pat Cipollone and probably his deputy, Patrick Philbin, both of whom have previously appeared before the grand jury.

But the big “get” so far is old runny-cheeks himself, Rudolph Giuliani, who, as they sang in musical “Hamilton” was in the room where it happened so many times, he’s probably lost count.  I’m certain, however, that Special Counsel Smith’s prosecutors had plenty of information to remind Giuliani of all the times he attempted to engineer criminal conspiracies to overturn the 2020 election for his client, Defendant Trump, who on this night in late June of 2023 is probably working on how many rat emojis he’ll use on Truth Social in the morning in the screed he writes about what a traitor his old friend Rudy turned out to be.