Raining On Parades
With the help of Popehat, I call out issues with the Fulton County case &, in doing so, piss everyone off
As has been widely reported, former President Trump and several other co-conspirators were indicted on state RICO charges late Monday in Georgia. This is the fourth time Trump has been indicted on criminal charges and the second time at the County level. There has already been a lot of media analysis of the indictment. And in most cases, the coverage people gravitate towards tends to fit their priors on Trump. That ideological sorting means that there is a real possibility of falling into the trap of wish-casting about outcomes. As usual, reality may end up somewhere more disappointing.
As usual with everything related to Trump’s legal troubles, the first place I turn is Ken White, aka Popehat. There are a few reasons for this: White is a former Federal Prosecutor and is now a Defense Lawyer. He’s historically been very evenhanded in his legal analysis and respects the difference between Federal and State criminal legal systems. He’s also one to actually research State statute before any deep commentary on it. Simply put, he puts being a good lawyer above being a commentator. He also avoids sensationalistic takes (there’s a joke that his nickname is “Kenny Raincloud”). As a result, I’m willing to not only put up with listening to Josh Barro but pay for that “joy” in order to get Ken’s perspective via their premium podcast Serious Trouble.
Something they have done, which I have yet to see anyone else do, is actually turn to a Georgia Defense Lawyer for an analysis both of the charges and District Attorney Fani Willis’ history. For those unfamiliar with him, Andrew Fleischman is not a Trump supporter. In fact, on most issues, you would characterize him as very liberal, if not fully progressive. And, like Ken, he’s an attorney (one critical of the criminal legal system) first and foremost. The results are a discussion that you may not want to hear (if you are looking for retribution) but should listen to.
Unfortunately, since the podcast is premium, if you are not a subscriber you can only listen to the first half of the conversation. That said, there’s still a lot in there and I strongly suggest listening to what you can.
For those without the time, or the subscription, here are a few key points that emerge from the conversation:
- Not only are we seeing the differences between Federal and State Law, we also see the difference between laws across states. As James has noted already Federal RICO law is far more restrictive than Georgia’s RICO law. Further, Georgia has a far more open RICO law than other states and it extends far beyond “organized crime”–to the degree that the term shouldn’t be used in relationship to the Georgia law. That’s one of the reasons why you don’t see similar prosecutions in the other States where Trump and Company attempted to undo the election results. Georgia’s law allows it to be applied in any case where a number of people get together to attempt to commit crimes (including, in one case, Georgia court reporters scamming for higher pay by using large fonts to increase pay counts). TL;DR: From a legal perspective Trump and company arguably chose the worst possible state for them to attempt these actions.
- There are good reasons for charging this as RICO. One thing it allows Willis to do is to easily bring in evidence and acts committed in other jurisdictions, both in-state (Coffee County) and out-of-state.
- The Georiga Indictment includes a number of sketchy charges that most likely will not hold up on appellate review. Before you start typing, let me be clear: everyone on the podcast agreed that there are serious offenses in the indictment. The problem is that they are interspersed with charges for what are most likely protected political activities. This is not the “They are criminalizing tweeting” defense used by many Trump Supporters (aside: my favorite retort to those so far has been “So apparently it’s illegal for Hunter Biden to own a laptop now”). White and co. are responding to things like the attempts to get Georgia’s legislature to meet and cast votes purporting to certify electors for Trump. While that would be cited as an example in a broader narrative about a conspiracy, asking the legislature to do something unconstitutional is not, in and of itself, illegal (otherwise we could prosecute all the groups that have been pushing for drag ban laws and any other statutes that are eventually overturned as unconstitutional. [Update: Ken White has published a post that gets into the legal details of this topic–I highly suggest reading it.]
- We are about to see how the differences between Federal and State prosecution strategies will impact outcomes. “Wait a sec Matt,” you might be saying at this point, “doesn’t the Jack Smith prosecution charge exactly that same thing?!” It doesn’t. Smith is charging under Section 241 of Title 18 of the U.S. Code and a “conspiracy against the right to vote and to have one’s vote counted.” That statute is relatively well defined (especially by existing precedent). As such, Smith’s team can use the example above as evidence of that effort. Willis, instead, is charging these under “Solicitation of violation of oath by a public officer” which is a far less defined statute and the text of it doesn’t seem to support this use. This is an example of the “kitchen sink” approaches State/County DAs often take versus Federal Prosecutors (note that the Smith indictment was very careful to repeatedly call out the difference between protected First Amendment activities and where the team crossed the line into criminal intent).
- At least three people charged, including Trump, may be able to have their venue changed to Federal Court. Trump, Mark Meadows, and Jeffery Clark have an opportunity to try and use the “removal statute” to shift the trial from State to Federal Court under the argument that their actions were part of their duties as Federal Officers. The request has to be made individually and Meadow’s legal team has already filed to do so. This is a relatively low evidentiary bar to overcome and we should expect that at least one, if not all, will clear it. If this happens, especially in the case of Trump, the chances are that a Federal Judge will not look as favorably on many of the more “long shot” charges. The county RICO trial may eventually happen, but that doesn’t mean that Trump will be tried in county court (and there’s a high likelihood he won’t be).
- Georgia RICO cases take a LONG time and while Willis’ office has been successful, they have largely been so against low-level offenders. As Fleischman, the previous successful RICO prosecutions have been against targets like teachers and court reporters. And the trial section of those trials, once started, still took months. In a current RICO prosecution against the rapper Young Thug and only 8 co-defendants (in Trump’s case there are currently 19), jury selection has been going on for eight months and still isn’t complete. So even if Trump doesn’t get a change in venue the chances of this prosecution moving forward ahead of the election is very slim. That length of time can lead less well-resourced defendants to plead out, but that is highly unlikely to be the case of any of the major players in this prosecution.
- People are misreading the sentencing guidelines. You are hearing a lot about a mandatory minimum five-year sentence. While there is that sentencing guideline, it’s only if the individual is incarcerated. And incarceration is not a requirement of a RICO conviction. There are alternative sentencing options including fines and probation that avoid prison time. Further even prison sentences can be probated, and they have been used in past RICO cases. Yes, the Prosecutor said that Trump would definitely be serving time if convicted. And we have lots of examples where Prosecutors got the law wrong in high-level prosecutions.
Does any of the above mean that no crime was committed in Georgia? No. It’s pretty clear that there is real criminal wrongdoing here (in particular around the Coffee County activities). All that said, if you are counting on this being the case that ultimately leads to Trump’s conviction and imprisonment, well, sorry but your case is in another jurisdiction.
Ok, I’m donning my asbestos underpants and looking forward to your comments.
One more point unrelated to the podcast’s content.
Another place where we will most likely see a difference between Federal and State/County systems is in booking. In all other cases so far, former President Trump has been charged at the courts without going through a traditional former booking process. Fulton County’s Sheriff, Pat Labat, is a Democrat. Unfortunately, Sheriff’s positions in the US are first and foremost political ones. And Labat has announced that he intends to book Trump at the jail, “just like everyone else.”
While the lizard-brain political side of me meets this news with glee, the criminal legal system reformer side doesn’t take any pleasure in this. The way we handle booking in the US, especially the release of public information about the suspect is really awful for a number of reasons. Not the least of which is the circulation of mug-shot photos, and other personal information about individuals who are booked. The ultimate effect of this is more often than not, publicly shaming people who have not yet been, and may never be, convicted of crimes.
My only hope is that, as with the January 6th trials, this might make some “law and order” types really question our existing practices. However, I am not holding my breath about that (especially as pointed out yesterday by Kylopod, for many “law and order” is just code for maintaining existing racial hierarchies).
Note: A previous version of this post went out earlier today. Unfortunately, there was some background WordPress jiggery-pokery with it that broke the post. I am looking into how to move comments from that post to this one.
I guess my real take on this is…what’s the alternative?
We all saw this conspiracy unfolding in real time. We heard all the lies being told. We saw all the court cases lost. We heard the infamous tape. We read accounts of fake electors. And then, when all else had failed, we got to watch J6 live on TV. We are all eyewitnesses.
We can argue inside baseball all day long.
But in the end, if we are to survive as a nation, Trump MUST be held accountable for trying to overthrow the Gov’t. The job of saving Democracy has fallen to Jack Smith and Fani Willis. We have no choice but to hope they are up to the task.
(and not a single scorch on your asbestos panties)
@Daryl:
First, apologies that you’re getting my avatar. That was the easiest way I could move this to the new post.
I think the alternative is a simple one, that should be general prosecutorial practice: Charge what you can prove in court.
Generally speaking, I think that is what Jack Smith did. And again, I think there are a lot of provable charges in GA. I also think it makes sense to apply RICO here based on local statute.
My issue, as always, is with overreach which I think will complicate this case and ultimately create real challenges with the outcomes. As I said in the post, it’s the difference between what Smith did in charging Section 241 of Title 18 of the U.S. Code vs Willis’s choice to charge under GA’s “Solicitation of violation of oath by a public officer.”
Again despite being married to one, I am not a lawyer. That said, when experienced attorneys like Ken White and Andrew Fleischman (who is a GA practitioner) side-eye a charge like that one and say it’s a stretch, I tend to believe them.
And my panties appreciate your care. 🙂
This also gets to the deep difference in approach between Federal Prosecutors (who are not responsible to electorates first and foremost) and County Prosecutors (who are).
@Matt Bernius:
I’ve never looked so good!!!
@Matt Bernius:
No quibble there.
But Willis has been working on this for two and a half years.
I have to hope she and her staff understand the gravity of their undertaking and know what the heck they are doing?
Matt –
I”ll add you to the cadre of people (Smerconish, Dan Abrams, etc) who seem to want to ignore the real world. Yes, all of what you say is true, to a point. But the reality is that this MFer has broken SO many laws that have gone unpunished, and has so taken advantage of the system, that the system itself is on trial. This guy cannot be treated like a “normal” anything. He’s not. He’s trying, actively, to break the system for his own personal benefit.
We all saw what transpired. You’re asking us to “Don’t believe your lying eyes.” EFF that.
So forgive me if I tell you, and Popehat, respectfully, GTFOH!!! Seriously.
@Matt Bernius: I tend to think that those weak charges can be bargaining chips in plea negotiations. I’ve heard so many lawyers say that you can’t really tell what a jury will do with something, regardless of what you might think is strong or weak.
Let’s say there are three options:
1) no one gets to face a needlessly cruel justice system
2) only the powerless get to face a needlessly cruel justice system
3) everyone (if indicted) gets to face a needlessly cruel justice system
As a believer in the importance of the social contract, I would say that #3 is A LOT better than #2.
Let him have it.
@EddieInCA: I think that there is very little disagreement about what Trump did. Nobody on Trumps side is saying “these are lies”, even. Have you noticed that? Have you noticed that the pushback does not generally dispute what happened. Trump specifically has denied, in the press, telling Pence, “You’re too honest”, but other than that, no, very few facts are in dispute.
The disagreement is over A) what does it mean? and B) does it violate criminal statutes?
Politics is not law. They don’t work the same. Politics often addresses issues of justice, certainly. Let’s let politics be politics and law be law.
The critique of Willis here is really mild. There are real and substantive wrongs done here. Giuliani’s goose is already cooked in the defamation case that Ruby Freeman has brought.
This will bear fruit, but it will likely take a long, long time. Trump doesn’t handle pressure all that well, so maybe he will do something really foolish in the meantime.
I’m reminded of Tyson saying;
We won’t know for sure until the trial is over if Willis’ strategy is “Ingenious”, as noted in James’ piece this morning, or overreach as Matt notes above.
It’ll be slow going. Years. By the time it goes to trial the election will be over, Trump will have lost. In the meantime some of the 18 will have sobered up and decided to cop a plea and flip. This new testimony may change the parameters of the Georgia case and possibly the federal cases. That, to my mind, is the usefulness of this case, short term. Longer term it’s a wound Trump cannot heal, it’s a possible future he cannot control, a possible future which is about as dire as can be.
I can tell you from personal experience that the prospect of prison is a sort of immovable obstacle that just squats across your future path. No plan can be made, no real future contemplated, until that obstacle has been removed. Trump is a conman he’s not the mark, he’s the cult leader not a believer, he knows the danger he’s in and he’s a coward, hence the hysterical public reactions. Over time this will not wear well with the cult. Cult leader is meant to be strong, not a scared, whiny bitch.
Conviction and prison are the dream goals, but the fear, the cost, the loss of allies as they flip, Trump’s awareness that his circle is shrinking and the people still around him are of ever-lesser quality, the nagging realization that however he tries to spin it he’s in the porcelain bowl and the flush lever’s been pushed, that’s all to the good. It may not be prison, but it sure as hell is punishment.
Again: personal experience. Whenever someone says, ‘You got away with it, Michael,’ while it’s legally true, I have a sardonic laugh at my own expense, because you do not come through this kind of thing unchanged. And I was a young man only looking at 3 to 5. Trump and the rest of these pricks face the very real possibility that their last hours will be alone in a prison infirmary. Imagine being president of the United States one minute and the next having to pay a trustee a pack of cigarettes so he’ll change your diaper.
@EddieInCA
In fairness, the most provable of the crimes happened 30 months ago and required intensive legal work to investigate. He’s now under four separate criminal indictments and facing others. It’s premature as hell to say he’s getting away with it.
And, while I fully understand the impulse to want Trump punished, one of the main reasons that I share it is his brazen disregard of the rule of law. Unfortunately, rectifying that requires following the rule of law.
@EddieInCA:
Starting backwards, I completely agree that many systems are on trial here and we keep seeing the limits of them. And we have for years.
We saw the flaws of the primary system that should have eliminated Trump from the process.
We saw the flaws in the electoral college.
We saw the flaws in the Special Prosecutor system, especially when filtered through a deeply political Attorney General.
We saw the flaws in the Senate, with a decision not to convict on the second impeachment, instead punting the issue to the criminal legal system.
No arguments from me on any of those.
And to be clear, I support prosecution. 100% I believe based on the evidence that across all these cases there are clear criminal violations.
I also appreciate the real-world results of all this–in particular the anger that people feel in seeing the former President not only seem to be escaping consequences but that he’s currently the lead candidate and has a realistic opportunity to become President again.
All I am doing here is arguing, as I always do, for careful prosecution–something that is happening in some of these cases, less so in others. And I am honestly cautioning that the real work and the legal world are different things. And, since 2016, there has been a LOT of wish-casting that “this is going to be the one that finally gets him.”
I do think he will eventually “get got”–he’s been party to too many well-documented crimes and screwed over too many collaborators. However, I don’t think it’s going to be fast. And, if we are being serious, I think there are going to be more disappointments along the way and it’s good to be prepared for them.
And part of the reason for those disappointments to this point is that to you underlying point, the system isn’t set up for this extreme outlying case. And sadly, there is little political will to change that.
@Jay L Gischer:
That is definitely a possibility–which unfortunately gets us back to our system’s reliance on overcharging to induce pleas. Which works really great when you are going after people who cannot afford to fight. That may not be the case here with the number of people charged. And if this gets split between federal and state court, that may take a lot of the value out of those pleas.
You are completely right that juries definitely react differently to different charges (the outcome in the E Jean Carroll civil suit is a great example of one making findings that seem contradictory but are not). Obviously, Willis decided the risk is worth it. We shall see if she’s correct.
Matt, after reading the comments here, I’m not sure I understand your post. Am I wrong in that you are simply saying your sources tell you a conviction on any charge is more likely if she had winnowed down the charges to the ones most likely to be winners? That throwing a lot of things in doesn’t make it more likely that at least one will stick, but actually less likely?
My understanding is that this would be federal judge using state law, sentencing to state prison, etc. It’s a change of venue and judge. I think the core charges are strong enough that this doesn’t bother me.
And if we lose a few of the “long shot charges”, that also won’t bother me, so long as we keep enough.
@drj:
I realize that’s what a lot of people feel. And I understand that position–like I said, I have a lizard brain too.
And, I want to point out that the glee I have seen about the idea of Trump mug shots and booking stats like his booking weight getting released is exactly why we are unable, as a society, to make progress on substantive criminal legal system reform. At the end of the day all sides are addicted to punishment–it’s just a difference in opinion as to who we think should get that treatment.
And, the reality is, as with most systems like this, the majority of that [focus on harshly punishing the people who “deserve it”] always trickles down to those with the least power to contest that treatment.
@Gustopher:
It’s a bit more complex than that. For example, the Federal Judge will have the opportunity to repeatedly go to the State’s highest court to get clarifications and interpretations of the statutes and laws. This means that, depending on that court’s interpretations, we could see deep disagreements in charging theory between the prosecution and the State court–definitely the sort of stuff a good defense attorney can work with.
It also means that the jury will have to seriously wrestle with the question of whether or not the individuals involved were operating within the scope of their Federal duties. That can provide a LOT of cover (especially given the shift in venue).
I’m sure Trump will use the mugshot for fundraising, if that helps your uneasiness in this case.
They also release height and weight. So, it’s fat shaming time! I am looking forward to all of the ridiculous “Trump as Rambo” style paintings people share on social media getting a comments with his BMI.
@MarkedMan:
Generally speaking, at least some people really familiar with Georgia state statute would answer your question with “yes.”
So this post should not be taken as a vindication of Trump or anyone who thinks that all of these charges are rediculous and will be thrown out (like I said in the stinger… there’s something in here for everyone to be pissed off about).
And equally importantly, if Trump is convicted, there is a very high likelihood, despite everyone’s wish casting, that he will never be incarcerated.
Again, I don’t think any of that should prevent prosecution. More it should be used to temper people’s expectations about outcomes and, if things don’t go that way, help understand why.
@Daryl: The alternative is Mr Smith and strategies that can actually succeed in law, not playing Moral Crusader and sending your figurative troops to die in trenches to prove your moral élan.
In any case Bernius’ summary rather seems to highlight for me an initial reaction that this is inexperienced Prosecutor over-reach and in end playing partisan (in the sense of poor legal gaming strategy) in contrast to the internationally experienced Mr Smith who has dealt with complexity and political delicacy.
Cultural Lefties Crowd-pleasing but rather likely to fail.
Like the impeachments.
@James Joyner:
@Jay L Gischer:
That hasn’t worked out so well so far….
Trumps Staggering Record of Uncharged Crimes
There is even a chart/table listing the crimes, dates, sources. It’s insane.
The Actual Laws Trump Has Broken, Just With the Ukraine and China Affairs, Could Land Him 10 Years in Prison
So forgive me for not trusting “the rule of law”, especially with people on one side thinking that it’s okay to bring a knife to a gunfight, while the other side’s gun is a Howitzer. Eff that.
@Matt Bernius: If the case is moved to Federal Court, the District Judge will, for substantive purposes be sitting as a Georgia State trial judge. He must apply Georgia law but the trial itself will be conducted under the Federal Rules of procedure and evidence. While the Federal Judge can apply to the Georgia Supreme Court for interpretation of Georgia law Judges generally avoid doing so unless the issue is unique and rare. The charges in this indictment are fairly straight forward and I would be surprised to see a referral by the trial judge to the Georgia Supreme Court.
The main advantage for Trump that I see is, if the trial is moved to Federal Court is there will be a much broader jury venire. In the Atlanta State Court, the venire will consist of all Atlanta jurors where Trump did poorly. The Federal jury pool will include prospective jurors from Atlanta but also from outlying areas in the Northern District of Georgia where Trump garnered a much larger percentage of the vote.
Trump will also most certainly move to dismiss some or all of the accounts on the basis of executive privilege, and expects his chances on that issue will be better in Federal Cpurt.
@a country lawyer:
TY for the clarification on some of those issues. Definitely appreciated.
Totally agree on the jury issue. Judge selection could be more favorable as well.
Right. And I think that’s a critical part. You are confirming my understanding is that people can fall back on Federal Law or statute (like Executive privilege) to assist with their defense (which they couldn’t do at a State trial).
@EddieInCA: These are hyperpartisans engaged in piling on. The overwhelming number of “crimes” listed just don’t get prosecuted. We essentially never prosecute for FEC violations. We never prosecute presidents for official acts that would be crimes for ordinary citizens.
I argued, from the earliest days of the Trump presidency, that he was in violation of the Emoluments Clauses and various corpution statutes. But the remedy for those was impeachment (which happened in the Ukraine case and for January 6) and removal (which has never happened in the history of the Republic for a president).
But, again, we’ve got Trump under indictment for multiple crimes in multiple courts. I think it’s highly likely that he’ll be convicted in multiple cases. I even think it’s possible that he’ll serve time in prison. That it hasn’t happened yet just isn’t that surprising.
Regardless, aside from a respect for the rule of law and the rights of the accused, there’s the matter of having the convictions upheld on appeal. Following the rules makes that a hell of a lot more likely.
@Matt Bernius:
FWIW, Fani Willis and her team are not inexperienced attorneys.
@Lounsbury:
And the truth is that Fani Willis has worked in the Fulton County district attorney’s office for 16 years and is one of the most experienced attorneys in the country vis a vis RICO prosecutions. She and Jack Smith both graduated from law school in the mid-90s, neither has any experience prosecuting a hypercriminal ex-president for crimes against democracy, and its a certainty that Willis understands the vagaries of Georgia law better than Josh Barro (*eye roll*) or anyone commenting here.
She and her team have been pouring over the relevant evidence in this case for two years. Those who have not, well, of course they are entitled to their opinions, but they probably don’t know what they don’t know.
Disagree with the charges on the merits, sure, but cut the ad hominem “inexperienced” bs. Y’all are not going to get away with helping Trump falsely smear her as incompetent, incautious, and inexperienced just because she’s a black woman vs “experienced” white men/attorneys who supposedly know better — as some swear they always do.
She is very experienced. A slow, two-year investigation — which predates the DOJ’s belated probe, btw — is the opposite of cavalier. Check your bias, and watch yourselves.
@Matt Bernius: I ask this in all seriousness: how is conspiring to steal an election/ overthrow a democratically elected government within the scope of anyone’s Federal duties?
@Lounsbury:
Trump’s impeachments were a success, contrary to what the Morally Ambivalent Fence-Sitters Crowd would like us to believe.
The first lay the groundwork for the American people to decline to re-elect a lying traitor to the world’s most important elected office.
The second laid the groundwork for the successful January 6th committee (that the contrarions claimed wrongly would be a waste a time), which forced the DOJ’s belated investigation of Treason Trump’s thuggery.
Nancy Pelosi did what Bill Barr and Merrick Garland should have been doing all along.
@Matt Bernius:
The tendency to want to re-discover one’s humanitarian side whenever a powerful person might get into serious trouble with the law is precisely why people like Trump succeed in becoming a one-man crime spree.
They will listen to your argument now and immediately discard when it’s “those people” again.
I know that you are sincere, but that doesn’t negate your responsibility to consider (and understand) what the actual impact of your argument is going to be in the here and now.
And that will be fewer consequences for the powerful and well-connected.
@Dk: A success? Good god, I would hate to see what passes for failure.
They pleased the BoBo Intellectual Left that loves performative virtue signaling over real achievemnts and achieve f-all practical – laid groundwork… in Left fantasy land (forced investigation… oh god what delusions among the BoBo Intellos)
Pre Trump I was quite happy with the BoBo intello Left’s political incompetence, now it frightens as you blundering incompetents may yet led to Trump II.
@Blue Galangal: I expect Meadows will in effect argue that his Federal duty as Chief of Staff was to see to it that the President’s instructions were carried out. In other words, “I was just following orders.”
Clark, and Trump himself, seem way more of a stretch under the recently established, “You say paying off a one-night stand is part of your official duties? Bhwahahahahahaha.” standard.
@Lounsbury: A resounding success. Failure would have been listening to Trump-Enabling Soft-Right Low IQ Losers like you, and doing nothing.
You don’t have any alternative, you have nothing but critique and criticism. What should have been done as opposed to impeaching Trump for his high crimes and misdemeanors? You have no answer, just hot air.
As to Trump II, my demographic voted 90% against Trump. From day one, we had the courage to say what needs to be said and do what needs to be done. Trump II, if it happens, will be the fault of mealy-mouthed cowards who look like you. Just like Trump I was. It’s no coincidence Trump’s main antagonists are blacks and women, and often black women like Fani Willis, while too many of the rest are sitting around second-guessing, foot-dragging and navel gazing with barbarians at the gate.
Fact is DA Willis and Trump’s star attorney impeachment managers are far more experienced and knowledgeable at this than you. And apparently have more guts and courage in their pinky fingers than you do in your entire body.
@Matt Bernius:
Another way of putting it is that you seem to be a believer in trickle-down justice.
I just don’t buy that.
@DK:
If I appeared to suggest that they were in experienced, that’s not my intention. They are clearly experienced. And experienced Prosecutors still make mistakes.
Ultimately, I am simply suggesting that a lot of decisions go into prosecuting–some of which are political. And it could be those things are part of the equation.
I am sure they have a strategy. I also think this is a really complex prosecution and one that is outside the boundaries of standard prosecutions. So standard tactics that are used (like forcing plea deals) won’t necessarily work. As with all things Trump-related, we are off the map.
Ultimately, as I’ll restate, my goal in publishing this is to directly address some of the challenges facing this prosecution.
While I understand the bar for removal is low, I wonder whether the reviewing judge will draw a distinction between President Trump and candidate Trump with the same question going to his White House staff and his campaign staff. I don’t know that the federal government has anything to say about how state elections are run or reviewed so Trump or Meadows weighing in seems like purely a campaign function. If Biden had been the one making these calls, this would not have been a question. Strangely, Clarke seems to have the best argument because his role was to try and misrepresent the findings and position of the DOJ.
IANAL, I didn’t even stay at a Holiday Inn Express last night. All I know is what I hear from talking heads. I’ve heard a couple of things that seem to undercut Popehat’s argument. One is that under GA’s version of RICO Willis has to prove that acts were taken in support of the conspiracy, the acts themselves don’t have to be illegal. The second is that yes, “Let’s hold a special session to approve alternate electors.” is legal, but “Let’s hold a special session to approve alternate electors because I have proof of cheating.”, if you do not have such proof, meets a GA charge of fraud to influence an official.
Again, I hardly claim expertise, but as @DK: points out, there may be no one with more experience than Willis with the unique GA RICO and other laws.
@drj:
I think you should re-read what he wrote, as I would argue you are drawing the opposite conclusion.
@drj:
I am absolutely not that, and I don’t mean to imply that at all.
What I am trying to say is that the challenge of doing criminal legal system reform work is that we have to be as prepared our principles to people we don’t like as people we do. Which is really difficult at times, but it’s really important. Because, at the end of the day, we need to be focusing on everyone touched by the system.
It’s also why we have to address uncomfortable issues like the need to include people involved with violent offenses in our work.
I also get that this is an activist view. But as I keep saying, if you think the issue isn’t our focus on punishment, but simply that we’re punishing the wrong people, then ultimately, that’s what keeps our system where it is.
@Matt Bernius:
I’d go further than suggest and just state flat out that prosecuting decisions in high profile cases are political and of course politics is part of the equation. District attorneys are elected partisans. Special counsels are appointed by and answer to political actors.
Salem Witch Trials, Lizzie Borden, OJ Simpson, Kenneth Lay, George Zimmerman, Elizabeth Holmes… all these prosecutions were and are political. High profile cases are also controversial and difficult to prosecute. Throw in a former president whose crimes are explicitly political in nature, then the cases are even more political, controversial, and difficult than usual.
The critiques of such prosecutions, positive and negative, are also political.
Those who desire high profile prosecutions to proceed or be charged in a way that is apolitical, noncontroversial, easy or slam-dunk are themselves wishcadting. American justice is political and difficult. Like…it is what it is.
@Lounsbury: I’m afraid to ask, but what possible action could the Left have taken to achieve success, given that the traitorous Republicans circled their wagons and protected one of their own?
@gVOR10:
One thing I think is critical to look at when you are consuming legal news is who is the expert you are listening to. One big challenge is that on the networks you often have Federal Prosecutors talking about State level prosecutions. Or in some cases, prosecutors from one state commenting on other state statutes.
My understanding from Fleischman who is a Georgia Defense Attorney is that isn’t the case. Or at least not for the underlying charge. I think it can still fall under the RICO charge. That said, if you have alternative links, I would love to read them and change my opinion.
@Joe:
This is a really untested area of law. In the case of the NY Stormy Daniels prosecution, there was a clear distinction that led to the denial of venue change–namely that everything happened while Trump was campaigning and not yet president. There are risible interpretations that part of the job of a President during their first term is being a candidate. Whether or not (a) the judge will by that, and (b) the results stand the almost certain appellate process remain to be seen.
@DK:
I completely agree on all counts.
It’s also worth noting that making prosecuting decisions based on political judgments (and lower risk thresholds–which tends to be another differentation point between county and federal prosecutors) doesn’t always lead to successful prosecutions. And history is filled with lots of high-profile cases that repeatedly demonstrate that.
All that said, the calculation for Willis may honestly not be ultimately convicting Trump but rather damaging him. And that may be as, if not more important.
Unfortunately, I fear that while the former President’s actions will catch up to him via the criminal legal system, there is a strong possibility the American people will have to first vote against him in a general election first.
@Steven L. Taylor:
Maybe this is for Matt to address, but (quoting him):
I.e., harshness trickles down from the powerful to the powerless.
Or, in other words, fairness may trickle down, too, from how we treat the powerful to how we treat the powerless.
Taken together, these statements read to me as a call to treat a powerful suspect (Trump) different not from how all other suspects should be treated, but still different from how most other suspects are treated in the hope that this has a beneficial effect down the line.
Trickle-down justice isn’t an unfair characterization, IMO.
Even if the aim isn’t to create a two-tiered system of justice (or a two-tiered economic order, for that matter), the practical outcome will be exactly that.
Moreover, two-tiered justice has its own social costs that should be taken into account before we take a chance on making an exception for one particularly powerful individual in the hope that others will eventually benefit, too.
@EddieInCA: What weapon did you have in mind, metaphors aside?
Going back to metaphors: A Special Prosecutor from the Department of Justice is not a switchblade. It is, in fact, the legal equivalent of a Javelin missile launcher. Not a single missile, a missile launcher. (Ukrainians are now taking out tanks with anti-tank mines strapped to cheap drones, by the way. That may be the best metaphor for the Fulton County prosecutor.)
Even Javelins need to be aimed. Even Javelins need to be loaded, to find targets.
@James Joyner: While the Geogia state case does have the appearance of “piling on”, its well to remember that Fani Willis’ investigation is well over two years old, and Jack Smith was only appointed last fall, less than a year ago. There was little reason for her to abandon her investigation short of an indictment solely because Smith was first to the grand jury.
Also, the actions of Trump and his co-conspirators to overturn the presidential election results in Georgia was so blatant and nationally publicized that Willis could hardly abandon her prosecution simply because Smith was first. If Willis had planned to only seek and indictment against Trump and none of the others, it might have well been appropriate to leave the job to Smith. But Smith’s prosecution both in Florida and D.C. have been laser focused on Trump. There was no reason to let others whose actions clearly violated Georgia law to walk free.
@Lounsbury: I supported both impeachments. I still do. Because it’s important to speak up and say, “that was wrong.” To get your vote on record. To get the votes of those who don’t think so on record. It is of utmost importance in maintaining a democracy that this happen.
I guess you would describe that as “performative”? I stood up every morning in grade school, put my hand over my heart, and said the Pledge of Allegiance with the rest of my class. I guess that’s a part of American experience you don’t share. It’s maybe performative, but also maybe something else. Something that signifies what we find important, and that we stand up and be counted.
@drj:
That wasn’t my intention.
I was simply asking people to reflect on the problem of celebrating or taking special joy in Trump being treated like “other suspects” because he “deserves” that treatment. I also think that it’s important for the system to strive to treat everyone equally. I’m further saying that, in general, no one deserves that treatment.
I regret the use of “trickle down” as it apparently confused the issue.
Jack Smith is an experienced prosecutor, and anyone who bothered to do the least amount of research would realize that Fani Willis is too. Smith, of course, has no experience trying Georgia State cases, but fortunately he is not trying a case there. Willis has little experience with the Federal System, and so is no doubt grateful she is trying her case in Georgia, where she has a couple of decades experience as a prosecutor, Judge and now DA in Georgia court systems, and has applied the Georgia RICO laws successfully in creative ways.
But both of them are completely inexperienced in prosecuting former Presidents. And completely inexperienced in prosecuting a megalomaniac with an army of half deranged cult members. This is unknown territory and it’s possible that the initial judges or the appeals judges (if it comes to that) may be looking for any excuse to wash their hands of the whole thing and so look for an out on technicalities. I’m confident that any mistake will be exploited to the best of the their ability by Trump’s defense team. And however shambolic they appear, it wouldn’t surprise me if there are more experienced and better attorneys giving them advice, but keeping their names off the court documents.
I’ve read a dozen different opinions from actual lawyers with experience in trying or defending government officials concerning Smith’s strategy, and it ranges from “Genius!” to “Elemental Mistake”. I’m not egotistical enough to think that I could pass judgement on which is most accurate based on reading some newspaper articles and bloviating at the local pub. I haven’t read much about Willis case lately except for what Matt outlines above, but I wouldn’t be surprised if we didn’t get the same mix. Despite that I appreciate reading these expert opinions. It helps me understand things about the trials and about the law that I didn’t know before.
@Matt Bernius:
This!! And allow me to add that our sense that “justice was done” is highly subjective to who got “the treatment.”
FTW, I’m on board with Matt about publicly humiliating those charged.
@Matt Bernius:
“I was simply asking people to reflect on the problem of celebrating or taking special joy in Trump being treated like “other suspects” because he “deserves” that treatment.”
It’s quite possible to believe both that no one deserves to be treated the way the vast majority of suspects in our criminal law system are treated, and also that the most likely way of changing it is to have a high profile defendant or two treated that way. As Oscar Wilde said, “If this is the way Queen Victoria treats her prisoners, she doesn’t deserve to have any.”
@drj:
I think you are grossly misreading his statement. I understood the point to be that societal impulses to punish wrongdoers end up not actually being meted out on the powerful, but instead trickle down and harm the powerless.
@drj: As a more general matter, I am not sure how you can have read his posts over time and then interpret him the way you appear to be.
While that would be cited as an example in a broader narrative about a conspiracy, asking the legislature to do something unconstitutional is not, in and of itself, illegal (otherwise we could prosecute all the groups that have been pushing for drag ban laws and any other statutes that are eventually overturned as unconstitutional.
The legislature was being asked to commit electoral fraud and overturn the results of an election, which is illegal. This conspiracy is no different than a conspiracy to stuff ballot boxes with votes from the dead. What Trump’s defenders want to do is the equivalent of turning stuffing ballot boxes into a constitutional crisis and a political question rather than treat it straight up as illegal.
@Matt Bernius: Sorry, that was stuff I heard without paying close attention to who said it, not something I read. So no link.
Thank you for this piece Matt. I am spending the week at Chautauqua at the invite of a friend. While the place is very liberally oriented one of the things I have appreciated is the willingness to look at and admit the times when liberals have been wrong or at the weaknesses in some of the liberal arguments. Ultimately it ends up being clear that liberal ideas are better but being willing to confront weaknesses and sometimes our own hypocrisy makes us better. Theme this week is free speech and has really made me think.
Steve
@a country lawyer: The “hyperpartisans piling on” reference wasn’t to the Georgia prosecution but to two links provided by EddieInCA arguing that Trump had gotten away with a whole bunch of crimes. Most of the “crimes” listed would never have been prosecuted.
Courtroom strategy also comes down a lot to personal style and knowledge of the local circumstances.
I personally prefer a lean approach like Smith. A limited number of points underfed by ironclad evidence which can be tied into a tidy story that makes it easy for people to nod along to. Especially laymen (but even experienced judges) can get easily confused by side issues if they are more “interesting” than the central points. In this special case, it also increases the legitimacy of the verdict. While prosecutors presenting all possible charges and the court throwing out prosecution overreach is part of the system working as intended, the mere fact that facile charges are made is often perceived as unfair.
On the other hand, this *is* a dangerous approach. As Jay pointed out, it’s always a gamble to leave out stuff, as you can never fully predict what a judge or jury will “like”. I’ve won cases on lines that I had intended as merely colouring. I’m sure I’ve lost some that I could have won on the merits of points I left out as completely irrelevant. Such is the life of non-omniscient counsel :D.
@Steven L. Taylor:
Oh, come on.
Matt’s main point is clear:
To which my response would be: Sure, but be careful that this doesn’t inadvertently become:
thus further entrenching an already two-tiered justice system.
This isn’t a debate about principles, but a debate about tactics, in which my position is that someone like Trump is exactly the wrong poster boy for criminal justice reform, because others (obviously not Matt!) will take the wrong lesson from this.
@drj: As you wish. Even above he said that wasn’t what he meant.
I fully understand wanting to win your position, it is inherent to these types of fora.
BTW: the main point of the post was that it is too soon to pop champagne corks over Trump going to jail in Georgia.
That is an utterly reasonable position, that I think a lot of people need to hear.
One last point: it is possible to have a contrary opinion without ascribing a post’s author to the villain’s role. Especially when the author is dedicating time and effort to engage readers in the comment section (let alone the time to provide the post in the first place).
I know we all have a lot of emotions about Trump. I will fully admit, I would love for him to have a mug shot that leaks to the press. That doesn’t mean that it is a good part of our system. And I would agree with you that at the moment, he is not a good reason to reform that process.
@Steven L. Taylor:
That is quite an accusation.
I think that I made a quite clear distinction between the intention behind Matt’s words and their likely (IMO) interpretation by others at this particular moment.
Perhaps it isn’t me who is needlessly looking for a villain here.
@Modulo Myself:
This gets to the topic of whether acts are specifically illegal (predicate) or are evidence of a broader illegal activity (overt). What you are describing, is arguably an overt act (in this case part of the overall RICO issue). They are not however necessarily a predicate act by themselves under Georgia law–asking the Legislature to pass something unconstitutional is seriously a gray area. Ditto knocking on people’s doors.
BTW, that can be contrasted with the attempt to make Secretary of State Brad Raffensperger create votes to allow Trump to overturn the election. That is both an overt act (evidence) AND a predicate one (illegal under the statute). White and Fleischman are both clear on that.
This may be frustrating from a lay perspective, but these ideas are critical in criminal law.
Ken White has just posted a more in-depth legal analysis of this topic. I recommend it to anyone who wants to understand his position on why some of the Fulton County charges:
https://popehat.substack.com/p/overt-acts-and-predicate-acts-explained?utm_source=substack&publication_id=86716&post_id=136161788&utm_medium=email&utm_content=share&triggerShare=true&isFreemail=true