Attempts to Derail State Charges Will Lead to a Constitutional Clash
More oceans of ink and punditry are accompanying Donald Trump’s latest indictment in Georgia for election interference.
Amid late night drama, the Fulton County grand jury indicted Trump and 18 co-conspirators, including several in the Trump inner circle, for running a “criminal organization” that conspired to overturn the 2020 election in the state.
It will take even for legal experts time to paw through 97 pages of charges with 41 counts, but the most important takeaways for the rest of us are simple: A trial will go on, regardless of the 2024 election, based on the idea that the former president was the center of a “criminal organization.
Because these are state charges, Trump can’t wish them away or threaten to sweep them aside upon his triumphal would-be return to the White House. Simply, attempts to derail state charges will lead to a Constitutional clash.
And even if Trump is victorious in the voting, he can’t even pardon himself for any conviction. Indeed, consideration for pardons in Georgia require serving a five-year sentence first.
–Whereas Special Counsel Jack Smith chose streamlined federal charges about the plotting and scheming towards Jan. 6, 2021, Fulton County District Attorney Fani Willis has chosen more far-reaching and complicated prosecutions that corral a bevy of alleged co-conspirators. Her choice of charges under racketeering statutes is usually reserved for organized crime figures. And these charges carry a mandatory prison sentence upon conviction.
Nearly three years and seemingly endless legal and political posturing after “free speech,” “perfectly good phone calls,” and actual rioting at the U.S. Capitol, Trump faces trial in purple Atlanta for multiple violations of law in his role in seeking to overthrow election results. And, the new charges come as he once again leads the Republican pack running for the White House, largely because the right-wing echo chamber refuses to acknowledge that crimes were committed.
And because it is state court, it is likely that we will be able – or forced – to watch the trial, whenever it falls in an increasing crowded legal and political calendar. Our daily deluge of what’s-with-Trump information is assured for years to come.
The RICO Approach
Georgia’s Racketeer Influenced and Corrupt Organizations Act (or RICO), will allow prosecutor Willis to sketch a comprehensive narrative of an alleged conspiracy involving multiple actors – although its prosecution is considered more difficult.
While Special Counsel Smith referred to multiple co-conspirators, he has not yet charged them, a tactic seemingly aimed at getting a trial scheduled before an approaching election.
Even though some events cited occurred in jurisdictions beyond Fulton County, the RICO approach allows Willis to argue that they were part of a plot considered and carried out in Atlanta, where, among other things, Trump pressured state officials to overturn election results.
In all, the indictment cites 161 “overt acts,” which need not be violations of law, and 47 “predicate acts,” which are violations in furtherance of the criminal conspiracy. Those included now-familiar references to the “perfect” phone call with Georgia Secretary of State Brad Raffensperger to “find 11,780 votes,” breaking into election machines and distributing confidential information to conspirators in other states.
Georgia’s RICO statutes is broader than its federal counterpart and can be geared toward any “enterprise,” enabling the use of the statute for a wider variety of conduct, including the making of false statements and computer trespassing in Coffee County, where allies physically broke into voting machines, and fraudulent elector schemes in Georgia and elsewhere.
Obviously, we can expect lots of legal challenges and appeals based on process, on the state-federal overlap, on jurisdictional questions, as well as on the substantive portion of the charges.
Nevertheless, Willis says she is aiming for a trial in six months.
And, naturally, the new efforts for fundraising for the Trump presidential campaign will start this morning.
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