Donald Trump’s strange legal martyrdom entered a new phase Monday night.
The new indictment of Trump — and 18 other defendants — in Fulton County, Georgia, is absurdly overreaching in both the legal theory and the facts it offers to support the charges.
It seeks to criminalize speech, including public statements. He pretends that a series of random events, many of which didn’t even involve Georgia, make a criminal conspiracy. Among the “open records” it includes is a text message from Trump’s chief of staff asking for the phone numbers of two Pennsylvania lawmakers.
Yes, that’s the whole “act”. No, I’m not making this up. I wish it was.
The indictment is a stunning abuse of prosecutorial discretion, made worse by the fact that federal prosecutors brought an accusation covering similar ground two weeks ago.
However, if the accusation is a joke, their game couldn’t be higher. It risks throwing the 2024 election into chaos and inciting even more political and social disorder than Trump’s other accusations.
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Trump’s indictment of Fulton County is staggering in its breadth. It covers 41 charges and 19 separate defendants, including Mark Meadows, Trump’s 2020 chief of staff.
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(Oh, what a great conspiracy you have!)
(SOURCE)
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At the core of the indictment are RICO – “Corrupt and Exporter Influenced Organization” charges against the 19 defendants. The fact that Fani T. Willis, the Fulton County District Attorneythat he is using RICO is no surprise, as no law can be more easily abused by prosecutors, except perhaps civil forfeiture statues.
Congress passed the first RICO statute October 1970. Originally aimed at the Mafia, RICO allows prosecutors to target criminal organizations whose leaders profit without directing foot soldiers to commit specific crimes. (Just make sure it pays, right?)
RICO allows prosecutors to hold defendants in one criminal enterprise responsible for the crimes of others, even if different conspirators committed them at different times. Members don’t even have to know each other. Basically, the statute criminalizes guilt by association.
Thirty-three states, including Georgia, have now passed similar laws.
But both the original federal statute and the state laws that followed did no they require violence as an element of conspiracies. Thus, prosecutors quickly began using the RICO laws to attack not only the Mafia, but also corporate crime.
White-collar defendants complained that they faced lengthy sentences for nonviolent behavior that, in some cases, had previously only faced civil penalties. Like the Los Angeles Times wrote in 1989:
A growing number of legal scholars, some of them former prosecutors, say the law is so loosely worded that almost any federal crime involving more than one violation of the law can be considered a racketeering case.
Stephen Gillers, a law professor at New York University, says, “I think that, on the face of it, the RICO statute gives the prosecutor too much power.”
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But Congress and state legislatures were – and have remained – unsympathetic to these complaints.
Recently, aggressive prosecutors have expanded the use of the statute even further. In a 2021 article on the growing use of RICO, The Wall Street Journal pointed out:
“Federal prosecutors have become more enamored with the RICO law’s ability to expand the story,” said James Trusty, former head of the US Department of Justice’s Organized Crime and Gang Division in Washington, DC. Mr. Trusty said the statute effectively expands what is considered criminal behavior under federal law and what is admissible in court.
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Perhaps no prosecutor is more enamored of RICO powers than Fulton County’s Fani Willis. In 2015, Willis used RICO to prosecute Atlanta teachers who had inflated children’s test scores. Eleven teachers were finally found guilty.
Now Willis has set his sights on Donald Trump for his decision to run for office in 2020, and the people around him who encouraged him and offered him strategies for doing so.
As I’ve said many times before (and as I know many of you don’t like to hear), Trump unequivocally lost 2020 in both the popular vote and the electoral vote. Their decision not to quickly accept the election results was bad for our democracy. I his unwillingness to condemn the violence in the Capitol and encourage a peaceful transfer of power on January 6 will forever stain him.
But.
But Trump’s complaints about the election were legal and protected speech. Even Jack Smith’s federal indictment makes it clear:
The defendant had the right, like every American, to speak publicly about the election and even to claim, falsely, that there had been fraud determining the outcome during the election and that he had won. He also had the right to formally challenge election results through lawful and appropriate means, such as seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.
Georgia’s indictment ignores Trump’s First Amendment rights, or anyone else’s. In fact, it goes the other way. It lists 161 “acts” that make up the alleged conspiracy.
The first is Trump’s November 4, 2020 speech “falsely declaring victory in the 2020 presidential election.”
Yes, Willis is trying to criminalize the act of a political candidate claiming to have won an election.
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The rest of the charge is just as bad.
Many of the “overt acts” that Willis alleges were part of the conspiracy consist of efforts the defendants made in Wisconsin and other states and have no plausible connection to Georgia.
Then there’s “Act 6,” when Mark Meadows, Trump’s chief of staff, asks a Republican congressman. relay the phone numbers of two members of the Pennsylvania legislature. This is. This is the whole “overt act in favor of conspiracy”.
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(Just give me the phone number and no one gets hurt)
(SOURCE)
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So, yes, Willis is stretching an already problematic legal theory to its limits.
Throughout his career, Trump has dodged legal trouble. This accusation may seem like another trap from which he will escape.
But here’s the thing.
Maybe not. Willis won in the cheating case. He convinced jurors to see the students’ changing answers on the tests as a criminal conspiracy. And she will have one a lot favorable jury to try Trump. Fulton County consists of the city of Atlanta and some of its suburbs and voted 73-26 for Biden in 2020.
Also, Willis has said he wants to try the case in six months, as the Republican primaries begin. By itself, this will prevent Trump from campaigning, although he is far ahead of Ron DeSantis and other rivals for the Republican nomination, his absence may not matter.
But if she wins, if she convicts Trump, she will go to jail. In Georgia, RICO charges carry minimum sentences of five years. And as commentators on both sides have pointed out, not even the Republican governor of Georgia will be able to pardon him. Only the state parole board can do that, and not until after your sentence is over.
The Constitution yes no prevent Trump from being elected president. But obviously, as a prisoner, Trump would face major obstacles in campaigning for president next summer and fall. He relies on his live demonstrations to rile and rally supporters and his ability to use the Internet to gain publicity. He will be missing both of these weapons.
This dynamic will be evident from the moment Trump is imprisoned, should he be convicted. Both his imprisonment for criticizing the 2020 election results and his inability to campaign will enrage his core supporters. (If he wins the presidency, I have no idea what will happen, but presumably Georgia will face pressure to change its parole laws to allow him to live in the White House as president.)
Trump is as far from a likable character as anyone can imagine.
But if he is convicted and jailed on these charges before Election Day, large numbers of Americans will see him as a political prisoner. And if he loses, they will blame his incarceration for that loss.
Congratulations, Alvin Bragg, Jack Smith and especially Fani Willis. You’re halfway to the most unthinkable magic trick of all time: turning Donald Trump into Nelson Mandela.
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