Surprise: Donald Trump indicted again
It is a startling demonstration of U.S. democracy: we are all equal in the eyes of the law!
by A. Altieri D’Angelo
Well, it happened again: indictment. But this one in Georgia poses the most risk to Trump and his cronies (all referred to as the Defendants). Trump is now charged with 91 counts of crimes in NY, Washington D.C., Florida, and Georgia (now adding the last 13 counts to the list). The Georgia indictment, however, is by far and away the most complicated and dangerous legally and politically for the former President and the rest of the Defendants.
The Georgia case has charged Trump with one count of violating the state’s RICO Act (Racketeer Influenced and Corrupt Organizations Act); six counts of making false statements and filing false documents, three counts of soliciting the "violation the oath" by a public officer"; two counts of conspiring to commit first-degree forgery, and one count of conspiring to impersonate a public officer.
Although the charges significantly overlap the indictment issued by the Federal Department of Justice Special Prosecutor, Jack Smith, the approach is very different. Jack Smith focused his indictment on Donald Trump and his actions. Fulton County District Attorney, Fani Willis, chose to indict Trump and the people who participated in the attempted overturning of the 2020 election. Smith wanted a focused indictment and a speedy trial. Willis will seek to tell the whole story to achieve a prosecution under the state's RICO statutes.
The federal and Georgia RICO statutes are very similar, except Georgia's is broader in scope. Under federal law, a person must have committed 2 instances of “predicate” or preceding offenses within the last few years. The person must also be affiliated with a larger ongoing enterprise or group, and their preceding offenses must relate to that enterprise in pre-defined, pre-established ways. Georgia’s RICO does not require that the person be part of an enterprise. A case can be brought against an individual for committing interrelated crimes without an enterprise. This provision allows the District Attorney to introduce evidence that would not be considered a crime on a stand-alone basis. Willis’s indictment seeks to connect the Defendant’s attempts to pressure election officials in Georgia and other states, including Arizona, Michigan, Nevada, Pennsylvania, and Wisconsin. It states that many interrelated acts were committed in Georgia and five other states. The Fulton County indictment alleges that the Defendants participated in a criminal enterprise to keep Trump in power. It states, "that conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and other states."
The Georgia case also poses a greater risk to Trump if he is found guilty. Under Georgia law, RICO convictions are considered felonies and have mandatory prison sentences of five to 20 years, or a fine of $25,000 or three times greater than the amount earned from the crime, or both. (What was the value to Trump of winning the 2020 election?) More importantly, the ability to receive a pardon is very limited. A U.S President does not have pardon power over state crimes. The Governor of Georgia also does not have the power to pardon; Georgia law has established a five-member panel to decide pardons. But such pardons are only granted after the person has served the minimum sentence (five years), paid all fines, and lived a law-abiding life.
Politically, the Georgia case could become a public relations disaster for Trump. Federal courts do not televise their trials, but Georgia does. Therefore, the Defendant’s trials will be national TV events. It will be the most-watched TV program in history. The American people will see and hear how Trump and his friends tried to stay in power.
The Willis legal strategy is not a sure winner. Holding a trial of 19 people will be complex and time-consuming. Trump will likely argue the state has no right to charge a federal official (he was still President when he allegedly committed the crimes). If Trump goes to trial, he will undoubtedly claim that he was exercising his 1st Amendment rights and, therefore, cannot be indicted. Willis will say that the 1st Amendment does not protect someone who knowingly made false claims and sought to pressure people to violate their oath of office. (Willis may also use the RICO approach to force some Defendants to cooperate).
The Georgia trial will be costly for Trump's Super Pac as it may have to pay many of the Defendants' legal fees.
The most striking aspect of this indictment is that Fani Willis, a county district attorney, indicted a former President for seeking to overturn an election using a state RICO statute. This case differs from the New York case, which focused on Trump's actions before becoming President. It is a startling demonstration of U.S. democracy: we are all equal in the eyes of the law!