By every measure, the Georgia indictments are the most serious … the most far reaching … and the most controversial. Fulton County Prosecutor Fani Willis has not just thrown the book at Trump et al, but the entire law library.
(By the way, you may have heard a number of media types noting that her name is pronounced “fa’ nee” not “fan ee”. It reminds me of the running joke in the PBS British sitcom “Keeping up Appearances,” in which the lead lady character insists that her surname Bucket is pronounced Boo kay’. But I digress.)
RICO
Perhaps the most controversial discretion Willis employed was to use the RICO (Racketeer Influenced and Corrupt Organizations Act) as the foundation for her indictments. This enabled her to expand the indictments beyond a few individuals and go beyond the jurisdiction of Fulton County. It also ties defendants to specific acts in which they did not directly participate.
This, in and of itself, is controversial for two reasons. First, because the law itself is controversial and does not sit well with a number of civil libertarians and constitutional scholars. Second, because it was the intent of Congress that the RICO law be applied only to organized crime of the Mafia and gang variety.
It was used for that purpose by Rudy Giuliani when he served as federal prosecutor in New York City. Rico became even more controversial when it was used for seemingly political purposes – by left-wing prosecutors to go after conservative activists and organizations.
In 1994, the National Organization of Women (NOW) used RICO to go after pro-life activist Joe Scheidler and others – accusing Scheidler of using extortion and criminal violence to block access to abortion clinics. In NOW v. Scheidler, the then very liberal Supreme Court sided with Scheidler – determining that his protests outside the clinics were constitutionally protected free speech and assembly.
In applying RICO, Willis ensures that the case will be even more controversial – and likely will again require action by the Supreme Court. Even some anti-Trump legal analysts fear Willis may have gone too far – giving credence to Trump’s claim of political persecution.
Free (or not)-for-all trial
Willis has said that she will try all the defendants in one trial. That is so ridiculous that one can only assume she misspoke or lied for some reason. Most bets are on multiple trials for different defendants. If it were to go as one trial, it would be the most controversial and complex trial in the history of the nation. Nineteen defendants in one courtroom with individual legal teams. That could mean the defense side of the courtroom would need seating for 50 to 100 key players. The judge could be forced to consider dozens of motions from dozens of attorneys at a time – over and over .
The only other case in American history to have 19 defendants in one trial was the 1985 to 1987 “Pizza Connection Trial,” which involved 19 defendants accused of being part of a Sicilian mafia network that smuggled heroin into the U.S. and distributed it through pizza parlors across the country. It took two years from indictment to verdict – with the trial itself, taking up 17 months. And that was a far less complicated or controversial case. There were no issues of Executive or lawyer/client privilege in that case. There were not a lot of constitutional issues unique to the presidency. In the Georgia case, Trump was the client for several of the lawyers who are now defendants. If Willis proceeds with a single trial for all
ndants, it could be the longest running one-ring circus in American judicial history – and likely will not be settled before the next President of the United States is elected and inaugurated. If it is Trump, while he cannot pardon himself, any sentencing would have to be deferred until he leaves office.
Timing
Willis says that she will ask the judge to set a trial date within six months. Yes, she wants to set down a parameter and put public pressure on the judge, but that one is beyond ridiculous. Unless she misspoke in terms of the one-for-all trial, her response is irresponsible – and may give a hint of her willingness to go beyond the traditional considerations of prosecution. Trying to keep the trial on the front burner during the campaign suggests political motivation.
Massive conspiracy versus individual crimes
Willis has put herself in the position of having to prove two things – that various individual committed crimes, some in cahoots with each other, and that there was an overarching criminal conspiracy among all the players – a conspiracy headed up by Trump. The latter is a much steeper legal hill to climb. If the RICO charge is too broad and too severe for the jury, Willis could lose the entire case.
The scope of the case
To see the case in perspective, it is necessary to see who all those defendants are – and what the charges are. Here is what Willis charges against Trump and the others.
- Racketeering. Charging Trump with forming a criminal enterprise with the other defendants under RICO. Using RICO, Trump is accused of being responsible for the potentially illegal actions of others – such as filing false documents or impersonating public officers. This charge carries a maximum penalty of 20 years in prison and a fine of up to $25,000.
- Solicitation of violation of oath by a public officer. This is for the claim that Trump solicited the Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.” This charge carries a maximum penalty of three years in prison and a fine of up to $5,000.
- Conspiracy. This basically accuses the group of conspiring to commit the aforementioned actions. This charge carries a maximum penalty of 10 years in prison and a fine of up to $15,000.
- Making false statements and writings. This charge collectively accuses Trump and his co-defendants of making false statement to public officials. It carries a maximum penalty of five years in prison and a fine of up to $1,000.
- Filing false documents. This accused Trump and his co-defendants of actually filing false or fraudulent documents with public officials or agencies. This charge carries a maximum penalty of five years in prison and a fine of up to $1,000.
- Impersonating a public officer. Here Willis is accusing Trump and the others of pretending to be public officers or agents without authority or consent. This charge carries a maximum penalty of five years in prison and a fine of up to $1,000.
- Influencing witnesses. In this one, Trump and others are accused of attempting to influence, intimidate, or hinder witnesses. This charge carries a maximum penalty of 10 years in prison and a fine of up to $5,000.
- Perjury. Trump and his co-defendants are accused of making false statements under oath or affirmation regarding the election results or the election process. This charge carries a maximum penalty of 10 years in prison and a fine of up to $1,000.
And who are those other 18 co-defendants? Among the big names are Rudy Giuliani (Trump lawyer), John Eastman (Trump lawyer), Mark Meadows (White House Chief-of-Staff), Sidney Powell (Trump Lawyer) and Jeffrey Clark (DOJ official).
The others include Jenna Ellis (campaign lawyer), Robert Cheeley (Georgia attorney, who filed lawsuits to challenge the Georgia results), Mike Roman (Georgia Trump campaign official who oversaw Election Day operations), David Shafer (Georgia GOP chairman and alternative elector), Shawn Still (fake elector), Stephen Lee (campaign worker charged with intimidation), Harrison Floyd (head of Black Voices for Trump and charged with intimidation), Trevian Kutti (intimidation), Cathy Latham (fake elector), Scott Hall (breach of Coffee County election equipment), Misty Hampton (allowed access to Coffee County machines), Ray Smith (campaign lawyer who filled challenges in other states),Kenneth Chesebro (file affidavit supporting Powell’s claim of vote fraud).
Potential defense arguments
On “Morning Joe”, co-host Mika Brzezinski cautioned that the public should be patient and wait for the decisions of the jury. Of course, that was only for Republicans who she cannot understand their refusal to accept her and the left’s rush-to-judgment. Democrats and those on the left should continue ther unrelenting prosecution of Trump et all in the court-of-public-opinion. Regardless of the media propaganda, there are a lot of defense arguments – too many to detail here. But here are a few.
- Several of the lawyers have asserted that they were acting lawyers for Trump and subject to client/attorney privilege.
- Various strategy options were presented as general conversation.
- Several of the examples of a criminal conspiracy alleged in the indictment refer to actions that were never taken or were even rejected by Trump. Such as having the military seize voting machines.
- Meadows and others have alleged that their actions were part of official White House duties and immune from prosecution.
- Some electors claim that they only acted on the advice of lawyers or people who they trusted as authorities.
- Some of the challenges Willis charges as illegal are legally questionable. Challenging elections results – or believing in fraud – is not illegal.
- Some argue that the indictment violates the Supremacy Clause of the Constitution – which gives federal law precedence over local prosecution. There is a move by the defense team to have the case moved to the federal courts.
- Some argue that the indictment conflicts with presidential clemency power and the impeachment power of the Congress. That may seem like a stretch, but it does give some hint how long these issues will be debated before and during the trial.
- Trump will claim that he was only asking for 11,780 votes from a larger pool of stolen votes.
Law enforcement versus politics
How much of the Willis case is politically motivated will be a constant question. The real question is not whether politics plays a role. That should be obvious to anyone with an IQ higher than a hockey score. We are talking about the indictment and possible imprisonment of a former President of the United States – and the leading candidate in the 2024 presidential election. Every prosecution and indictment of Trump has been carried out by Democrat prosecutors – some of whom are the employees of Trump’s probable chief rival, Joe Biden. Attorney General Merrick Garland is a political appointee who serves at the will of the President. Willis is an elected prosecutor who is using her prosecution of Trump for political capital and fundraising.
Arguably, it is that obvious realization that keeps Trump up in the polls. Even if he is guilty of keeping records he should not have — or violated some campaign finance filing requirement — or even was overly aggressive in trying to find vote fraud in the 2020 election … does he deserve a potential lifetime incarceration for which the Democrat mobs are clamoring, and the Democrat prosecutors are pursuing?
How the public answers that question may be the most important factor in the 2024 presidential election. Throw the Georgia case into the mix of indictments and lawsuits swirling around Trump, and you can know that this may be the bumpiest presidential campaign season since the 1860 presidential election that launched the Civil War – even more than 1968, when left-wing rioters fought police outside the Democrat National Convention in Chicago as Senator Hubert Humphrey was giving his acceptance speech.
With the trials likely to be off for more than a year, the American public will be exposed to unrelenting and relatively meaningless mendacious political narratives, partisan spin, propaganda, political posturing, and baseless speculation day after day … after day … afterday … after day.
So, there ‘tis.