Proffer videos show ex-Trump lawyers tell Georgia prosecutors about effort to overturn 2020 election
ABC News obtained video from interviews held with Jenna Ellis and Sidney Powell.
As part of a plea deal, one of former President Donald Trump's attorneys has told prosecutors in Georgia that she was informed in the wake of the 2020 election that Donald Trump was "not going to leave" the White House -- despite the fact that he had already lost the election and most of his subsequent challenges.
The revelation, along with others, came during a confidential interview the attorney, Jenna Ellis, had with Fulton County investigators. ABC News has obtained portions of videos of the proffer sessions of both Ellis and Sidney Powell, two attorneys who aided Trump's efforts to overturn the election. The videos for the first time reveal details of what they have told law enforcement since agreeing to cooperate last month in the district attorney's election interference case.
Ellis, in her proffer session, informed prosecutors that senior Trump White House official Dan Scavino told her "the boss" would refuse to leave the White House despite losing the election, and alluded to two other instances she said were "relevant" to prosecutors -- but appeared to be prevented from disclosing those in the video portions obtained by ABC News due to attorney-client privilege, which hindered portions of her proffer.
Powell, meanwhile, explained to prosecutors her plans for seizing voting machines nationwide and claimed that she frequently communicated with Trump during her efforts to overturn the 2020 election -- though both now claim she was never his attorney.
In the session, Powell reiterated the false assertion that Trump won the election -- but acknowledged in the video that she didn't know much about election law to begin with.
"Did I know anything about election law? No," she told Fulton County prosecutors. "But I understand fraud from having been a prosecutor for 10 years, and knew generally what the fraud suit should be if the evidence showed what I thought it showed."
A spokesperson for the Fulton County District Attorney did not respond to a request for comment. Attorneys for Ellis and Powell declined to comment when reached by ABC News. Scavino also did not respond to a request for comment.
In a statement to ABC News, Steve Sadow, Trump's lead counsel in the Fulton County case, called the "purported private conversation," as described by Ellis, "absolutely meaningless."
"The only salient fact to this nonsense line of inquiry is that President Trump left the White House on January 20, 2021, and returned to Mar-a-Lago in Palm Beach, Florida," Sadow said. "If this is the type of bogus, ridiculous 'evidence' DA Willis intends to rely upon, it is one more reason that this political, travesty of a case must be dismissed."
Proffer sessions, which are often required as part of plea deals, occur when a defendant meets with law enforcement to disclose information that would be helpful to prosecutors. The videos obtained by ABC News do not appear to depict Ellis and Powell's full proffer sessions, but rather appear to be excerpts that total nearly an hour and a half. At one point in the videos, prosecutors indicate that Powell, in her session, answered "three hours of questions."
Trump and 18 others pleaded not guilty in August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. Ellis and Powell, in addition to two other defendants, have since agreed to plead guilty to reduced charges and avoid jail time in exchange for their cooperation in the case.
MORE | Former Trump lawyer Sidney Powell takes plea deal in Georgia election interference case
The former president has blasted Fulton County District Attorney Fani Willis' investigation as being politically motivated.
'We are just going to stay in power'
Ellis, who at one point was one of Trump's most loyal lieutenants, frequently appeared on TV and in high-profile legislative sessions spreading false claims of election fraud following the 2020 election. In total, the Trump campaign paid her nearly $195,000 for her legal services between 2019 and 2021, according to Federal Election Commission records.
In the video of prosecutors' Oct. 23 proffer session with Ellis, she said that one of Trump's top White House aides, Dan Scavino, allegedly told her "in an excited tone" at a White House Christmas party weeks after the 2020 election that "the boss is not going to leave under any circumstances."
Ellis specifically noted during the proffer session that the alleged comment from Scavino, who worked for Donald Trump for decades at the Trump Organization before joining his first presidential bid, came in response to her apologizing over the lack of success with their election challenges in court, culminating with a Supreme Court loss that indicated their ability to challenge the election "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 said of the alleged Dec. 19 conversation with Scavino. "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.'"
Ellis continued, "And I said to him, 'Well, it doesn't quite work that way, you realize?' and he said, 'We don't care.'"
Ellis told prosecutors that both were consuming alcohol during the party, but that she did not believe that factored into Scavino's apparent mindset or her memory of the event, according to the proffer video.
Ellis also told prosecutors that in her mind, the fact that Scavino offered the information immediately after she brought up the Supreme Court loss "indicated to me that he was serious and that was in furtherance of something that he had discussed with the boss."
The account given by Ellis to prosecutors, as revealed in the proffer video, echoes earlier reporting this year from The New York Times' Maggie Haberman, who reported in her book, "Confidence Man: The Making of Donald Trump and the Breaking of America," that Trump had told aides, "I'm just not going to leave" and "we're never leaving."
Ellis' account illustrates one of the most concrete examples yet of one of those instances, which has now been given directly to prosecutors -- who were cautious throughout the exchange not to wade into areas protected by attorney-client privilege.
Former Georgia prosecutor Chris Timmons, an ABC News contributor, said that Ellis' testimony may ultimately assist Georgia prosecutors at trial -- but that the evidence might not be a "kill shot," given the comment did not come directly from the former president.
"Assuming Ms. Ellis testifies consistently at trial, her testimony about the Scavino conversation would help the State prove its allegation that the former President conspired with others to unlawfully change the result of the election," said Timmons. "But that evidence is not a 'kill shot' in that it didn't come directly from the former President."
'Rudy called me every name in the book'
After Powell accepted her plea deal in Georgia on Oct. 19, Trump quickly took to social media to try to distance himself from Powell. "Despite the Fake News reports to the contrary, and without even reaching out to ask the Trump Campaign, MS. POWELL WAS NOT MY ATTORNEY, AND NEVER WAS," Trump wrote on Trump Social. Ahead of her plea deal, Powell through her lawyer, also said she never represented Trump or his campaign, The New York Times reported.
Still, Powell described in her proffer interview being in close and repeated contact with then-President Trump, claiming that she frequently received calls from Trump asking for updates on their efforts to overturn the election -- even as the Trump campaign publicly distanced itself from her in November 2020.
Powell, in her proffer, recalled a conversation with Trump in which she expressed remorse to Trump that "none of our cases were panning out."
"We were filing our cert petitions, but it wasn't looking good for anything to happen in his direction," Powell said of her legal challenges. "He always wanted to know where things were in terms of finding fraud that would change the results of the election."
Powell also listed multiple meetings she had with Trump, his top advisers and the campaign -- including her take on the now-infamous meeting held in the White House Oval Office on Dec. 18, 2020, in which Trump and his advisers allegedly discussed seizing voting machines as part of their effort to contest the election.
Trump, said Powell, "was specifically willing to appoint me special counsel" -- a move that would have granted her substantial legal powers. "In fact, he looked over at [White House Counsel Pat] Cipollone three different times and said, 'Do I have the authority to name her special counsel?' and Cipollone said, 'Yes, you do,'" she said in the video.
"And then somebody said, 'Well, she doesn't have a security clearance,'" Powell said. "So he looked at Cipollone and he said, 'Do I have the authority to give her a security clearance?' and Cipollone said, 'Yes, you do.' And then about the third time we went through that scenario, Cipollone, I think, said, 'You can name her anything you want, Mr. President, and nobody's going to pay a bit of attention to it.'"
Powell, who discussed the Dec. 18 meeting in her deposition with the House select committee investigating the Jan. 6 attack, told the committee that she took Cipollone's comment to mean that Trump "wasn't getting the legal counsel he needed, or the support from his staff."
The Oval Office meeting, which was also attended by Trump's former national security adviser Michael Flynn and then-Chief of Staff Mark Meadows, has been described by sources as highly contentious.
During her proffer, Powell said it was her belief that Trump wanted her to pursue the seizing of voting machines, and explained to prosecutors how she would have done it.
"I guess [Trump] assumed, and I would have thought, that I would have looked at putting into effect a provision of 13848 that would have allowed the machines to be secured in four or five states or cities," Powell said, referring to a draft executive order Trump considered signing, but did not, that would have given the Director of National Intelligence the ability to conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, was interfering in the election.
When asked how she would have determined which states to target, Powell said she would have focused on states that she believed had "statistical anomalies" -- despite there being no evidence of such anomalies.
Though Powell told prosecutors it was clear she would not get the special counsel appointment, she said she still followed up with Meadows the next day.
"I called Mark Meadows the next morning just to run it to ground, and said, 'Hey, when can I come pick up my badge and my key?'" Powell said. "He essentially laughed -- I mean he said, you know, 'It's not going to happen.'"
Powell also recounted an additional meeting with Meadows and Trump attorney Rudy Giuliani, with whom she worked to challenge the election results, that she said got "really ugly."
"There was a big shouting match in which Rudy called me every name in the book and I was the worst lawyer he'd ever seen in his life. There were no circumstances under which he'd work with me on anything. He called me a bitch and I don't know what all, and that's pretty much all I remember about that one," she said.
'If I was right, he would remain president'
In discussing her direct conversations and meetings with Trump, Powell, in the portions of her proffer interview obtained by ABC News, told prosecutors that she never heard Trump concede that he lost the election even after being told by key aides that he had. Instead, she said he was following "instincts" that he won.
"All his instincts told him he had been defrauded, that the election was a big fraud," Powell said. "Just general instincts that something wasn't right here."
Still, Powell said she was present when multiple advisers told him he had lost, and prosecutors pressed Powell over why the president followed her advice instead of his other advisers.
"Because I didn't think he had lost," Powell replied, later saying, "I saw an avenue pursuant to which, if I was right, he would remain president."
Timmons, the former prosecutor, also told ABC News that the partial video reviewed of Powell's sessions could end up helping the defense, because Powell appeared to sincerely believe there was election fraud and communicated that to Trump.
READ MORE | Timeline: Special counsel's probe into Trump's efforts to overturn 2020 election
"That information would be helpful for the defense in that it bolsters a defense that the former president thought he was acting lawfully," the former Georgia prosecutor said.
Ahead of the Jan. 6 attack on the Capitol, Powell said she remembered telling "everybody that I needed to get the hell out of D .C." because she "didn't think any of it was a good idea."
"I just saw it as a really bad idea to have a rally over the end of the Trump presidency. I just wouldn't have encouraged people," said Powell, who made similar comments in her deposition with the House select Jan. 6 committee.
"In fact, there are several people that had plans to come up that I told not to come, and they didn't come," Powell said in the proffer video.
'Shielded from the general public'
Ellis, in the proffer, also alluded to two other instances she said were "very relevant" to prosecutors -- but she appeared, in the portions of the video obtained by ABC News, to be prevented from disclosing the details due to attorney-client privilege, which hindered portions of her proffer.
The first instance was a private conversation she said she had with another attorney while Giuliani was in the bathroom after the two appeared at a legislative hearing in Georgia in early December 2020. It was during that hearing that Giuliani pushed officials to change the election results, in part by pointing to a video he falsely claimed showed vote counts being altered by election workers Ruby Freeman and Shaye Freeman Moss, who later won a defamation lawsuit against Giuliani.
Regarding the second instance, Ellis told prosecutors she believed that information about the so-called fake elector plot was intentionally kept from her.
"My belief, essentially, [is] that was shielded from me specifically, but also from the general public, as far as what was actually going on," Ellis said regarding the plot allegedly orchestrated by Trump and his allies in seven key swing states to produce and submit fake certificates certifying so-called alternative electors to secure Trump's Electoral College victory in those states.
However, in the portions of the proffer video, prosecutors stopped Ellis from going into detail on either of those topics, instructing her that neither side wanted her to speak about any conversations that would be subject to attorney-client privilege. Ellis, as a result, did not provide details of those interactions -- highlighting the extent to which she appeared to be constrained at times in her ability to cooperate with prosecutors.
In fact, in the portions of video obtained by ABC, Ellis never discussed any conversation she personally had with Trump.
Ellis, who in her remarks alternated between speaking on and off the record with prosecutors, instead discussed only the context surrounding the two incidents she couldn't divulge, including saying that she first learned about the concept of the fake electors plot from Giuliani and current Trump adviser Boris Epshteyn.
"There was one group [text] thread that Boris initiated when -- which was the first time that I learned of it -- asking me to just join a phone call," Ellis told prosecutors, who then stopped her from discussing the details of the call.
A day after her proffer interview, Ellis entered her guilty plea in Fulton County court -- telling the court that she regretted her involvement with efforts to challenge the election.
"If I knew then what I know now, I would have declined to represent Donald Trump in these post-election challenges," Ellis tearfully told the judge. "I look back on this experience with deep remorse."
