Several analyses published late yesterday point to the uniqueness of the Georgia case compared to the three other (so far) criminal indictments against the former President Trump.
Writing in NYT, Norman Eisen and Amy Lee Copeland contend, “This Indictment of Trump Does Something Ingenious.”
When the Fulton County, Ga., district attorney, Fani Willis, filed criminal charges against Donald Trump and over a dozen of his allies for their attempt to overturn Georgia’s 2020 presidential election results, she did something ingenious.
In contrast to the special counsel Jack Smith’s latest laser-focused federal indictment of Mr. Trump, Ms. Willis charges a wide range of conspirators, from people in the Oval Office to low-level Georgia G.O.P. functionaries, and is the first to plumb the full depths, through a state-focused bathyscaph, of the conspiracy.
Her case also provides other important complements to the federal matter: Unlike Mr. Smith’s case, which will almost certainly not be broadcast because of federal standards, hers will almost certainly be televised, and should Mr. Trump or another Republican win the White House, Ms. Willis’s case cannot be immediately pardoned away. It offers transparency and accountability insurance. As she said in her news conference on Monday night, “The state’s role in this process is essential to the functioning of our democracy.”
But the indictment stands out, above all, because Georgia offers uniquely compelling evidence of election interference — and a set of state criminal statutes tailor-made for the sprawling, loosely organized wrongdoing that Mr. Trump and his co-conspirators are accused of engaging in. It is a reminder of the genius of American federalism: When our democracy is threatened, states have an indispensable part to play in protecting it.
[…]
American law has long recognized through the crime of conspiracy that combinations of criminals are more dangerous than lone wolves. RICO is conspiracy on steroids, providing for stiffer penalties and other advantages like bringing multiple loosely connected conspiracies under one umbrella.
Georgia has one of the most capacious RICO statutes in the country. The state’s legislature enacted it specifically to “apply to an interrelated pattern of criminal activity” and mandated courts to “liberally construe” it to protect the state and its citizens from harm. Under the law, prosecutors can charge a sprawling criminal enterprise and even include individuals who may not have known “of the others’ existence,” as one court put it.
Writing at WaPo, Amy Gardner, Holly Bailey, Amber Phillips and Shayna Jacobs see “Georgia and federal indictments, two vastly different approaches.”
Charges against former president Donald Trump and a raft of others in Fulton County, Ga., over their alleged efforts to overturn his 2020 defeat finally landed Monday, the result of a sprawling investigation that stretched over 2½ years and led to a complex racketeering case featuring 41 criminal counts against 19 defendants in a massive 98-page indictment.
Contrast that with a federal indictment filed against Trump on Aug. 1 in Washington that also accuses him of illegally attempting to subvert and overthrow the election. In that case, Justice Department prosecutors sought charges against Trump alone. They appeared to be aiming for speed and simplicity, producing a 45-page indictment featuring four charges after an investigation of the former president that began well after the Fulton probe.
Unlike the Georgia indictment, which alleges multiple instances of making false statements, witness tampering and impersonating a public officer — among dozens of other counts — the federal indictment avoids potentially complicated accusations that some advocates pushed for, such as seditious conspiracy or insurrection.
Legal experts said the difference in strategy comes with some advantages: District Attorney Fani Willis’s sprawling case will allow Fulton County prosecutors to tell the jury a story of a broad conspiracy to reverse election results in multiple states and build a forceful narrative of Trump’s actions in concert with numerous aides, lawyers and local officials. But experts warned that the logistics of putting Trump on trial along with 18 other people — each of whom may file a flurry of pretrial motions — in a racketeering indictment so complex and multilayered could carry unique difficulties.
Trump and his allies have attacked both Willis, a Democrat, and special counsel Jack Smith of the Justice Department for investigating alleged election interference, accusing them of conducting political witch hunts and attempting to interfere with the former president’s 2024 bid for the White House.
But even some of Trump’s critics have questioned the apparent breadth of Willis’s investigation and the challenge she faces in persuading a jury to criminalize statements about election fraud — including portraying a few seemingly innocuous tweets as furthering the conspiracy — that many view as protected speech under the First Amendment. She will also have to convince a jury that Trump and others knew what they were saying was false, and that they are not protected by the fact that in many instances they were following the advice of their lawyers.
Willis’s ambitious decision to use Georgia’s expansive RICO statute — a law historically employed to prosecute mobsters — to charge Trump with leading a vast criminal enterprise to steal the 2020 election could allow her to target many more of those involved in the alleged conspiracy beyond Trump, potentially transforming the way political wrongdoing is punished.
Alternatively, her gambit to try all 19 defendants together could be seen by jurors as a massive instance of prosecutorial overreach. And despite Willis’s statement late Monday that she’d like to see a trial date within six months, the sprawling nature of the case could push the start beyond the 2024 election and take years — and many appeals — to resolve.
“This is eye-popping,” said John Malcolm, a former federal prosecutor based in Atlanta who is now a constitutional scholar at the conservative Heritage Foundation, speaking of the contrast between the federal and state indictments. “What about the right — when you believe allegations to be true, or you have some evidence to support the allegations — to seek redress? And all of a sudden they’re perpetrating a conspiracy? I think that’s astonishingly dangerous.”
Writing at The Bulwark, law professor Kim Wehle argues “This Indictment Hits Different.” Afer rehashing what others have said, she observes,
Much of the commentary thus far has focused on Georgia’s RICO law, which allows prosecutors to indict people who are part of a criminal “enterprise,” like a mafia mob or a gang, without showing an actual agreement (as the crime of conspiracy, by contrast, requires), and without having to prove a particular state of mind on the part of the mob “boss” (that is, Trump). The law requires prosecutors to prove a pattern of unlawful conduct—not necessarily separate crimes—with at least two of them occurring within a four-year time span. The indictment lists a whopping 161 predicate acts as part of the alleged enterprise.
After noting that conviction on RICO carries a minimum sentence of five years and that a re-elected Trump would lack the ability to pardon a state conviction, Wehle observes,
[T]his indictment is the only one that arguably includes metaphorical ‘dead bodies’ strewn across the stage—so that jurors can viscerally understand the case, which will be necessary if they are going to convict a former president. So far, it’s unclear what harm, if any, befell national security as a result of the Mar-a-Lago classified documents case. Prosecutors need to figure out a way to show that Trump’s astonishing recklessness actually hurt people. The January 6th indictment consists of three conspiracy charges and one count of obstructing an official proceeding—all important charges for our democracy and for the rule of law, but relatively abstract concepts that could be hard for jurors to get upset about.
The Georgia indictment, however, is different. It involves real people with respectable lives who suffered serious harm. In addition to the charges listed above, it includes Influencing Witnesses (as well as Criminal Attempt to Commit Influencing Witnesses). These charges relate to the heartbreaking story of two election workers, Ruby Freeman and her daughter Shaye Moss. According to the indictment, Donald Trump and Rudy Giuliani labeled Freeman “a professional vote scammer and known political operative” who “stuffed the ballot boxes.” She and her daughter were accused by Trump and his operatives with being “responsible for fraudulently awarding at least 18,000 ballots to” Biden. Another co-defendant, Trevian Kutti, Kanye West’s ex-publicist, allegedly traveled to Freeman’s home and attempted to pressure her into admitting baseless fraud claims or face arrest within 48 hours.
Moss told the House January 6th Committee that an anonymous caller told her: “You should be glad it’s 2020 and not 1920,” a phrase that appeared to invoke the violent history of Southern segregation and lynching. Said Moss:
It has turned my life upside down. I no longer give out my business cards. I don’t transfer calls. I don’t want anyone knowing my name. I don’t want to go anywhere with my mom because she might yell my name out over the grocery aisle or something. I don’t go to the grocery store at all. I haven’t been anywhere at all. I have gained about sixty pounds. I just don’t do nothing anymore. I don’t want to go anywhere. I second-guess everything that I do. . . . All because of lies, of me doing my job, same thing I have been doing forever.
Her mom gave an account of how the episode has affected her life, too:
I wore a shirt that proudly proclaimed that I was, and I am, Lady Ruby. Actually, I had that shirt on—I had that shirt in every color. I wore that shirt on Election Day 2020. I haven’t worn it since, and I’ll never wear it again. . . . I’ve lost my name, and I’ve lost my reputation. I’ve lost my sense of security, all because a group of people, starting with Number 45 and his ally, Rudy Giuliani, decided to scapegoat me and my daughter Shaye—to push their own lies about how the presidential election was stolen.
Fourth, the Georgia indictment includes charges of Conspiracy to Commit Election Fraud, Conspiracy to Commit Computer Theft, Conspiracy to Commit Computer Trespass, and Conspiracy to Commit Computer Invasion of Privacy. It them outlines a series of illegal breaches of election equipment in Coffee County, Georgia, allegedly made in an effort to reveal evidence of fraud that never materialized. Sidney Powell and other co-defendants allegedly “trespassed” into election computer systems “with the intention of removing voter data and Dominion Voting Systems Corporation data.” That’s the same Dominion Voting Systems that won a $787.5 million settlement with Fox Corporation in a defamation case that exposed the network’s lies about the integrity of the voting systems in this country.
Jurors of whatever political stripe will understand that hacking into voting systems is a no-no. They will understand it because the claim was the basis of Team Trump’s months-long assault on the legitimacy of the 2020 presidential election.
In other words, this case exposes the Big Lie for what it is: a massive projection from Trump’s disturbed mind, which pathologically accuses everyone else of things that only he and his allies had the audacity to do.
As noted yesterday, I have instinctive qualms about RICO laws and other tools that make it easier for prosecutors to convict those they accuse of crimes and to coerce them into testimony, confession, or plea deals. That said, I support their ostensible original aim of making possible the prosecution of organized crime bosses who orchestrate but shrewdly distance themselves from the routine commission of crime. While I think Trump’s crimes are more in my lay understanding of “conspiracy” rather than “organized crime,” the similarities are close enough that I don’t object to the application of RICO here.
As to the likelihood that this trial will be televised, my instinct is to welcome it. There are, however, many legal experts who think it invites circus and, more importantly, makes witness intimidation more likely. Still, given the inherently polarizing nature of prosecuting a man a significant number of Americans think was wrongly deprived of the presidency, making more prominent things like the story Ruby Freeman and Shaye Moss tell is necessary to convince people that Trump did, indeed, do things serious enough to merit imprisonment.
