Making a Racket in Georgia

By Rafael Hoffman

As has become a weekly feature for those following the news cycle, former President Donald Trump was charged with a new set of offenses, this time by a Georgia District Attorney.

The 98-page indictment accuses Mr. Trump and 18 co-defendants with operating a complex conspiracy with the goal of overturning President Joseph Biden’s victory in the 2020 elections.

Those interested in legal fallout connected to the former President’s actions following the 2020 election have long had their eyes on Georgia. It was one of the states where the tally showed him losing narrowly, leading to multiple public statements, legal actions, and overtures to state officials claiming the results were the result of widespread voter fraud. Much attention there focused on a phone call by Mr. Trump to Georgia’s Secretary of State Brad Raffensberger during which the former said, “I just want to find 11,780 votes.”

Depositions, subpoenas, and grand -jury proceedings in Georgia have been ongoing for more than two years, with many thinking they could produce a formidable case against Mr. Trump.

What emerged was a list of 161 acts the filing argues tie together a criminal effort to undo legitimate election results. Some of these acts include direct overtures to officials and efforts to appoint an alternative slate of electors. Others are public statements made by Mr. Trump and his associates claiming to have won the election and messages arranging phone calls and meetings focused on the election.

On the long list of co-defendants are several high-profile names including Rudy Giuliani, who led many of the legal challenges; Mark Meadows, who served as White House Chief of Staff; legal scholar John Eastman; and attorney Sidney Powell.

The legal vehicle employed to tie together the defendants and their actions is Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, a statute typically used to fight organized crime.

The indictment is the work of Fani Willis, an elected Democrat, who serves as District Attorney for Fulton County, which includes Atlanta. She launched her investigation into Mr. Trump shortly after taking office in January 2021. During her term, Mrs. Willis has often used her state’s broad RICO statute, mostly to prosecute street gangs.

The present charges are unique among other cases thrown at Mr. Trump over the past year. Under Georgia law, a RICO conviction carries a mandatory jail term. Mr. Trump also faces two sets of federal charges, one for alleged illegal retention of documents, and another over actions surrounding the 2020 elections. In the event of a conviction for either, should Mr. Trump win the presidency in 2024, he could conceivably pardon himself. He would not have that authority if the present charges in Georgia remain in state courts. An early legal effort by Mr. Trump is already underway to move these charges to the federal system.

Mr. Trump also faces charges in New York City for financial irregularities. Many perceive that case as the weakest of the bunch and, even if he is convicted, it is unlikely those charges would carry a prison sentence.

Polls show Americans sharply divided over how they view the legal battles Mr. Trump faces. A little more than 50% see them as appropriate accountability for his actions, while the rest view them as political weaponization of the legal system aimed at handicapping the former President and other Republicans.

To gain a fuller understanding of the Georgia case and its implications, Hamodia spoke with John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government.

What is the basic doctrine of Racketeering law and what is unique about Georgia’s RICO statute?

The federal RICO statute dates back to the early 1970s when it was drafted to go after organized crime. It makes it easier for prosecutors to bring disparate parties and acts of a criminal enterprise together. It’s a powerful deterrent to drug cartels, mafia crime families, and the like, since different people who are involved in different aspects of activity can be considered involved in the entirety of the organization’s criminal activity and charged for it. 

A lot of states have their own RICO laws, but not all. Georgia’s RICO is very broad and covers far more than the federal version. In most places, to bring a racketeering charge, a real or de facto organization has to exist. Additionally, there needs to be a clear pattern of racketeering, the actions need to be connected with advancing a common criminal goal, and they have to have been done over a significant span of time.

Georgia, on the other hand, does not require even a de facto organization to exist. Its statute only requires two or more enumerated acts executed for a common purpose over a relatively short period of time. Those factors make it much easier for a prosecutor to pull a lot of acts, many of which are not in themselves criminal, and a lot of different people, into a RICO charge — as was done in this case.

Are these charges straightforward or do they rely on a complicated legal theory? 

It’s certainly not a simple case. If a prosecutor wants to, they can always try to fit a square peg into a round hole, and sometimes creativity is a good thing. But just because you can do something doesn’t mean you should do it.

I find the implications of these charges to be dangerous and highly inappropriate. At their core, these charges attempt to criminalize anyone who participates in questioning the outcome of an election. That could go well beyond the circumstances that occurred in 2020 and have a broad chilling effect on any candidate’s ability to contest election results, as well as the lawyers who represent them.

I temper that with one caveat, which is that there are two aspects of the case that I do not know enough about to properly judge, and those are the charges relating to accessing the Dominion voting machines in Coffee County and alleged witness intimidation against Ruby Freeman. Besides those two relatively limited points in this case, I see these charges as a serious threat to our system.

What aspects of the charges against Mr. Trump himself do you feel are “inappropriate”?

Donald Trump, like any other candidate for public office, has the right to contest an election and to demand recounts. He can make public statements questioning the fairness and propriety of the election, and file lawsuits. He can speak with officials and legislators to ask them to aid him in redressing his grievances. None of that is illegal; in fact, it’s part of our system.

A major element of this indictment is that Donald Trump made false claims. It might have been unreasonable for him to believe that he had won the election, but it certainly seems that it is what he believed and continues to believe. Even Jack Smith’s federal indictment over the 2020 elections acknowledges that Trump had the right to make false claims. In fact, even if he didn’t believe he had actually won, that would not take away a candidate’s right to contest the outcome. That might not be the right thing to do, but it doesn’t break any law.

What this indictment essentially argues is that it’s criminal to use legal proceedings, request special sessions, or exercise your First Amendment free speech rights to question the legitimacy of an election.

Some of the charges against Mr. Trump are for talking to officials in the Department of Justice and to his Vice President about what they could do to review what could be done and possibly overturn the election results. Whether he was right or wrong about the election itself or about the boundaries of their authority, these are inferior officers in the executive branch, and he was the President. He’s allowed to talk to them about anything he wants.

There might be a political price if the directions he gives to them are not popular, but the way to redress that is through elections. Charging Trump for these actions criminalizes communications between the President and his subordinates, which could end up impinging on his legitimate constitutional authority and putting dangerous limits on how the executive branch can function.

What is your view of the charges against attorneys who litigated Mr. Trump’s election fraud claims?

Lawyers are supposed to zealously defend their client’s interests. They have an ethical duty to take unpopular clients and make the best legal arguments they can on their behalf. They can present facts that their clients believe to be true and use any plausible legal argument to advance their cause. Even if these arguments eventually fail in court, there is nothing wrong with them having argued these points. 

What Mr. Trump’s lawyers were doing was fulfilling their duty to a client. The theories they advanced did not prevail, but they were not frivolous. These charges could make a very dangerous landscape for attorneys representing candidates challenging an election.

How do the alternate electors that the Trump campaign appointed figure into these charges?

These people were not hiding what their intentions were. Their goal was to preserve Donald Trump’s legal rights by having a slate of electors for him should his legal challenges prevail.

By law, the winner of a presidential election must have his electors show up at the state capital on a given date, which is set by statute, December 14 in this case, to cast their votes for their candidate. If they fail to do so, even if the election would be overturned by courts, the rightful winner would have no remedy since their opponent’s electors would already be certified. On December 14, 2020, these cases were still pending in Georgia, and the results were being litigated.

Having an alternative slate of electors ready to go in contested elections is not something new, and in fact it happened twice in American history. In 1876, during the contested election between Rutherford B. Hayes and Samuel Tilden, four states submitted dual slates of electors. Ultimately, the election had to be settled by a deal brokered by Congress. That election and its resolution were controversial, but not because of the dual slates of electors that had been submitted.

Again in 1960, Richard Nixon was initially declared the winner in Hawaii. John Kennedy sued to contest the outcome and there was a court-ordered recount.

Knowing that the recount would not be completed before the electors needed to register, Kennedy sent an alternative slate of electors to the legislature. In the meantime, Nixon was certified as the winner. But in the end, the recount came out in Kennedy’s favor. The Governor recalled Nixon’s electors and certified Kennedy’s. While all this was going on, nobody accused Kennedy’s electors of being racketeers or election fraudsters. The people within the Kennedy campaign who urged them to show up at the capital and sign certifications saying that they were legitimate electors were not being accused of doing anything criminal.

In 2000, Hawaii Congresswoman Patsy Mink urged Al Gore to present an alternative slate of electors in Florida while litigation there was ongoing. The Gore campaign decided not to follow this advice, but no one accused Mink of trying to entice others to engage in a criminal conspiracy to subvert the results of the election.

Presenting a dual slate of electors has happened before in our history, and certainly should not be a crime. It will also have a chilling effect on party activists, which would be terrible. We should be encouraging more people to get involved in politics, not discouraging them by threatening them with criminal indictments.

The sum total of these charges, should they prevail, creates a situation that would essentially stifle the ability and likelihood of campaigns challenging the results of an election in the future, lest they be charged with criminal activity for doing so.

There are some defendants in these charges who are not accused of any criminal act, and not directly seeking to overturn the election results, but they facilitated meetings and communication as part of their jobs in the administration or campaign. How do these acts fit into a racketeering charge?

Mrs. Willis’ theory is that everybody connected with the Trump campaign, including those who sent emails or made phone calls, were part of a nationwide conspiracy. There are other people here who are being charged with a crime for doing fairly routine parts of their job. Mark Meadows is charged because he arranged phone calls and meetings. He was White House Chief of Staff; it was his job to take care of the logistics of what the President wanted done.

That, in and of itself, is a very overreaching theory. In addition to the 19 charged defendants, there are several dozen others that the indictment does not name. If you take Fani Willis’ theory to its logical conclusion, anybody who publicly expressed an opinion that the 2020 election was stolen is guilty of some crime because it helped to advance the goal of this alleged conspiracy.

If Mr. Trump can argue he believes that he won the election, does that undercut the case?

Intent is incredibly important. For these charges to stick, Trump had to be knowingly and willfully presenting false claims. But we have no reason to think that. This indictment and the federal one present evidence that a lot of people around Trump told him that he had lost the election. But, he had a lot of other people around him telling him that he had won and that the whole thing was a fraud. Those people still believe that and so does Mr. Trump. No one presented any proof that his opinion ever changed. To this day, Trump insists that he was the rightful winner. That might be unreasonable, but it’s not criminal.

How do you estimate the risk of a co-defendant turning into a state’s witness?

Any broad indictment with a lot of defendants would have that risk. If you offer them an incredibly favorable plea deal or immunity, it might be possible to get some of them to do that. But most of these people are pretty distinguished individuals whose reputations are being sullied by these charges. I assume they are eager to fight these charges and clear their names.

Is there a justification for these charges being brought now, two and a half years after they occurred, and as Mr. Trump is running for reelection? Is the time frame standard?

I don’t know what else Mrs. Willis had on her desk that made this take so long, so I can’t comment in detail, but it is certainly odd that these charges are being brought so long after the incidents occurred. If the stakes were as high as they are being presented, you would think she would have wanted to move quickly.

Was there a simpler way to present this case? Had charges focused on the Raffensperger call, where Mr. Trump asked him to “find” votes and other similar actions, could that have produced a straighter indictment? 

I do not think it is at all clear what Trump’s intentions were during that call with Brad Raffensperger. Every left-wing media outlet portrayed it as a direction to Raffensperger that he manufacture votes. Remember, Donald Trump had his legal team on the line when the call was made. They were in the middle of a lawsuit asserting that these votes existed either in the form of illegitimate votes that had been counted for Biden or legitimate votes that had not been counted for Trump. In that context, I think it’s quite plausible that what he meant was that they, Trump and his legal team, had a task of finding the requisite number of votes, which Mr. Trump and his team were convinced existed, to prevail in their legal challenge. Even if there is another way of looking at the former President’s statements, once they are subject to different interpretations, they should not be considered criminal.

Some of the charges against Mr. Trump are for public statements he made in speeches or on social media, claiming to have won the election. Since those, in and of themselves, could not have changed the results, how can they be criminal? 

I think their theory is that all of Trump’s speeches and tweets that the election was stolen were part of a grand conspiracy to intimidate state officials into taking illegal action to overturn election results in his favor.

Many acts listed in the indictment took place outside of Georgia. Does that help the Trump team’s argument to move the case to a federal court? In general, how difficult would it be for Mr. Trump to move proceedings to a federal court?

That the actions cut across states is not an argument to move the proceedings to federal court. Conspiracies often take place across state lines and that doesn’t take away the state’s jurisdiction.

However, here I do think there is a good chance the case will get removed to federal court since the questions here are about political activity within the federal government. Counting electors is a task of Congress. Mr. Trump will argue that what he was doing was within the scope of his authority as president, as well as his rights under the First Amendment. That could be an argument for presidential immunity as well, but it could also be a reason to transfer the case. There is already a motion pending with a federal judge in Georgia to have the case removed, and we will see what the judge says about it.

How quickly could this case move to trial?

I have no idea how long it will take, but one thing is certain — there is no way it will be before the 2024 election. You have 19 defendants, complex legal issues, and three other sets of charges against Mr. Trump, two of which already have a trial date, and a third case which will probably get to court before this one.

Are you concerned about how elected Democrats or their appointees prosecuting the GOP front-runner affects people’s views of the legal system?

I think there are a lot of people who see a two-tiered justice system. One that was ready to overlook what Hillary Clinton or Hunter Biden did, and another one looking desperately for ways to charge Donald Trump with crimes. Unfortunately, there is some justification for that view.

If this case proceeds, and Trump goes on to lose the election, but ultimately gets acquitted, there will be a lot more people saying that this whole thing was a political stunt to hurt his campaign. That loss of confidence in the neutrality and legitimacy of our legal system is a very dangerous thing for America.