The Georgia indictment

Another prosecution of Trump that shouldn't have been brought

The other day, Bill wrote a post about how all the options for dealing with Donald Trump’s “carefree lawlessness” are bad. Indicting a former president and current leading political figure is a bad option, but so is failing to hold Trump criminally accountable.

I agree with Bill. In my view, however, there is one option that is clearly less bad than others: Prosecute Trump for crimes that everyone understands to be crimes, without resorting esoteric or ill-fitting legal theories, where the facts clearly show that Trump committed the crimes.

Of the first three prosecutions of Trump, only the one for obstructing justice and mishandling classified documents meets this test. The New York prosecution for paying off Stormy Daniels and Jack Smith’s D.C. prosecution for post-election conduct do not.

Now that I’ve read the Georgia indictment, I’ll add it to the list of prosecutions that shouldn’t have been brought.

The indictment makes tedious reading, but it’s actually pretty straightforward. The opening paragraph states:

Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.

The indictment then tries briefly to describe the “criminal enterprise.” Next, it lists eight general ways in which the enterprise proceeded, followed by 160 specific “acts of racketeering.”

The problem with the indictment is evident from the opening paragraph quoted above. It wasn’t a crime for Trump to refuse to accept that he lost the 2020 presidential election. Nor, absent more, was it a crime to try to change the outcome of that election.

Many politicians have tried to change the outcome of a lost election. The tradition goes back at least as far as 1876, when Rutherford Hayes and President Grant tried to change the outcome of an election both thought Hayes had lost, and when, once they succeeded, the Democrats tried to change the outcome back.

The indictment states that Trump and the other defendants tried “unlawfully” to change the outcome of the 2020 election. But to have attempted this, they would have had to engage in conduct that, itself, is unlawful.

It’s doubtful that the prosecution can show Trump did this.

I’m not going to discuss all of the 160 acts cited in the indictment, but basically they fit into one of the following categories:

Legitimate and constitutionally protected speech. Even Jack Smith’s election-related indictment concedes that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” Georgia prosecutor Fani Willis apparently didn’t get the memo.

Actions taken on the advice of counsel. Trump is not a lawyer. He was entitled to rely on theories presented to him by his lawyers, such as John Eastman who, at the time, was a well-respected legal scholar.

Actions taken by other defendants who were trying to help Trump as to which it appears Trump had no knowledge. For example, it might have been a crime for members of Trump’s team to harass and intimidate election workers. But it may well be that Trump did not authorize or know about the harassment and intimidation. Similarly, tampering with electronic tabulating machines in Coffee County, Georgia sounds like a crime. But again, there doesn’t appear to be evidence that Trump authorized or knew about this.

Actions Trump took that may have approached the line, but in my view didn’t cross it. The best example is Trump’s request to Georgia’s Secretary of State that he help him “find” the 11,780 votes needed to swing the state. This statement can be interpreted as asking for help in committing fraud by creating votes. But the far more natural interpretation is that Trump genuinely believed the votes were out there to be found and wanted help finding them. It is not a crime to ask for help finding votes that one believes have been cast but not counted.

The indictment tries to get around the problem that Trump may not have authorized or known about criminal conduct of co-defendants by alleging a conspiracy and racketeering. As I understand it, under Georgia law when there’s a conspiracy to commit two or more acts of racketeering in the state, the leader of the criminal enterprise need not have knowledge or intent to commit specific acts undertaken as part of the conspiracy.

But the assertion of a conspiracy, much less a conspiracy to engage in racketeering, seems quite weak. Andy McCarthy explains why here.

Where’s the evidence of a meeting of the minds to act unlawfully to change the outcome of the election? Even if Trump had gathered every defendant at the White House in November 2020 to discuss how to swing the election in his favor, this would not be evidence of a common plan to act unlawfully.

Trump believed he had won the election. I assume that many, if not all, of his co-defendant believed this too — as the vast majority of Republicans do to this day.

As noted, it’s not a crime to try to prevail in an election a candidate believes he has won but which, in reality, he has lost. (I don’t think it’s even a crime to try to prevail if the candidate believes he has lost.) Thus, the notion that Trump ever agreed with his co-defendants to act unlawfully might well be untenable — or at least not provable beyond a reasonable doubt to a fair-minded jury.

McCarthy also argues that RICO doesn’t apply to Trump’s case because it requires an “enterprise” and there was none here. He writes:

Trump and his 18 co-defendants did not intend or desire to belong to a group, or even see themselves as a group. Their objective allegedly was to maintain Trump in power, not to participate in an enterprise. And unlike a RICO enterprise, the 19 defendants had no intention of sustaining their group — if it even was a unified group. Their only objective allegedly was to keep Trump in office. By Jan. 20, 2021, that objective was either going to succeed or fail, but whatever the outcome, the group would then cease to exist as such. By contrast, a real RICO enterprise must be a continuing threat — one that labors to preserve its existence and operations.

I don’t know the applicable law well enough to agree or disagree with McCarthy. However, it does seem far-fetched to apply an anti-racketeering statute aimed at organized crime to a politician’s challenge of an election.

I’ll conclude with two observations, one of which is a caveat. The caveat is that we don’t know what evidence Fani Willis and her team have uncovered or will uncover. Her monstrosity of a case names 19 defendants (by my count). It’s possible that one or more of the defendants will flip — for example, Jenna Ellis, a lawyer on Trump’s team whose legal defense Trump reportedly has declined to help fund because she endorsed Ron DeSantis for president. If one or more co-defendant flips, he or she might provide the prosecution with evidence of Trump’s knowledge or direct involvement in criminal acts.

My other observation relates to Willis, herself. She is being ripped for trying to make a name for herself and/or trying to help her party derail Trump.

It’s very possible that Willis is guilty as charged. However, I can understand the urge to prosecute Trump over what happened in Georgia.

He and his team of bullies and fabulists came into that state making all manner of outlandish claims of fraud, harassing and intimidating election workers, and ignoring the counsel of knowledgeable Republican officials in the state who shot down various of Team Trump’s theories.

Sensible Georgians of both parties have a right to be pissed off.

Nonetheless, Willis should not have brought this prosecution. It fails the test that, in my view, should apply. The crimes she alleges are based on statutory overreach and do not appear to be supported by the evidence.