Aug.15

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Trump Legal News, Part I: Peach Pickin' Time in Georgia

Merle Haggard was actually singing about something else that's orange-colored and kind of squishy, but it still works here. Yesterday, as most readers will know by now, DA Fani Willis and her grand jury finally pulled the trigger and indicted Donald Trump for crimes related to (alleged) subversion of the 2020 presidential election.

There has been much angst about what was taking Willis so long to take care of business, and now we have a pretty good answer to that. The indictment, which you can read here, is pretty vast, and involves a grand total of 19 defendants. Here's a list of everyone who was charged yesterday, in the order they appear in the charging document:

That's 134 different crimes, spread across a total of 41 different counts. The indictment also notes that there are an additional 30 unindicted co-conspirators.

Since the Big Fish is the one people really care about, here are the 13 crimes Trump is charged with:

For those keeping score at home, across four venues, Trump now faces a grand total of 91 felony counts. In order of indictment, that's 34 in New York, 40 in Florida, 4 in Washington and 13 in Georgia. Of course, any one of these indictments could be updated to include more charges. It's also not impossible that Trump could end up indicted a fifth time, either by AG Letitia James in New York, or perhaps by Special Counsel Jack Smith. There's no public indication a fifth indictment is coming, mind you, it's just within the realm of possibility.

The Georgia indictment came together very, very quickly. Certainly more quickly than was expected just 36 hours ago. The two star witnesses who were supposed to chat with the grand jury on Tuesday, reporter George Chidi and former Georgia lieutenant governor Jeff Duncan, had their testimony moved up to Monday. Then, Judge Robert McBurney announced that he would keep his courtroom open past the close of business. And then, bam! Indictment.

Why the sudden burst of speed? That's not at all clear at this point, but here are three theories:

1. Keep Calm and Carry On: Perhaps it is her personality, or perhaps it's because she lives in Georgia, or perhaps it's because she's Black and/or a woman, but Willis has consistently been more concerned about, and more proactive in trying to defuse, potential violence than the other prosecutors who went after Donald Trump. It could be hustling to the finish line a day early was a part of that overall effort.
   
   
2. Oops!, Part I: A little after noon ET on Monday, someone posted a document to the Fulton County Court website outlining the charges against Trump (you can see it here). This was before the grand jury had voted on the various counts against Trump, and a clerk of the court characterized the document as "fictitious." Uh, huh. Since the document proved to be entirely correct, it is fair to say that the clerk's words were fictitious. And having let the cat partly out of the bag, maybe Willis & Co. decided they had to push forward as rapidly as was possible. That said, the one-day-early testimony from Chidi and Duncan was arranged before the inadvertent leak, which certainly weakens this theory.
   
   
3. Oops!, Part II: Maybe someone at the Fulton County Courthouse unwisely pushed the ludicrous speed button.

In the end, the difference between Monday evening and Tuesday during the day likely didn't matter too much. Willis has been dotting her i's and crossing her t's for a long time now, and undoubtedly was very well prepared.

On that point, once the indictments were unsealed, Willis held a press conference and shared some interesting thoughts. She said she wants to try all of the defendants at the same time, ideally "within the next six months." In theory, Donald Trump's calendar will be occupied with the 1/6 trial, but surely Willis and Smith can work something out. Willis also said that "just probation" is not in the cards for Trump, nor, most likely, is a plea deal.

None of that is good news for the former president, of course. And while it's impossible to say which of his ongoing criminal prosecutions is most worrisome for him, we can at least point out seven not-so-lucky ways in which Georgia is specially troublesome:

1. RICO: Every single person listed above is being charged with a RICO violation; it's also the most serious of the crimes being charged (if you look at the accidentally released charging document, you'll see it's identified as a "serious felony," whereas the others just have the label "felony"). The federal RICO statute was written specifically to go after people like Trump, who are good at giving themselves plausible deniability on any individual crime, but who engage in a pattern of corrupt behavior. Put another way, the scales had tipped a little too far in the favor of miscreants, so the Congress tipped them back, and pretty aggressively. It is NOT a defendant-friendly statute, that is for sure.
   
   Oh, and as we've noted, the Georgia RICO statute is even more aggressive than the federal version. In particular, one of the illegal acts that qualifies as part of the pattern under the state law, but not under federal law, is forgery. If you're wondering why that might be relevant, take a look again at the list of offenses Trump is charged with. It's also worth noting that this is Willis' 11th RICO prosecution, so she and her team know what they're doing here.
   
   
2. Co-Defendants: At the moment, at least, this case involves far and away the largest number of Trump co-defendants. Further, they aren't Trump underlings who rely on him for employment and/or to pay their legal bills. It's going to be much harder to get all 18 of them thinking that protecting Trump comes first. And even if they are thinking that way, it's going to be very hard to get all 18 of them to tell the same lies, and to tell them convincingly. Consequently, all 18 are a risk to turn state's evidence.
   
   
3. Co-Conspirators: Of course, several potential co-defendants have already turned state's evidence. That's why, despite Georgia having 16 EVs, thus necessitating 16 fake electors, there were only three fake electors charged. In addition, several Georgia officials are certainly going to testify, among them state Secretary of State Brad Raffensperger (R-GA). In short, even if the 19 people charged yesterday stay resolute, Willis has some dynamite testimony lined up.
   
   
4. Smoking Gun: Speaking of Raffensperger, the recording he made of his conversation with Trump will be a centerpiece of the prosecution's case. There is also a smoking gun in the Mar-a-Lago documents case, but the Georgia smoking gun is as clear as could possibly be. Just that recording alone is practically enough to convict.
   
   
5. Georgia Politics: Trump should probably be worried about his legal problems, and not his political career. But that's not how he thinks, and everyone knows he's at least as focused on being reelected as he is on being exonerated. Georgia is a state he really must have if he wants to win the White House (otherwise, he will have to flip Pennsylvania, Arizona AND Nevada). He lost the Peach State in 2020, and is not terribly popular there with the general-election electorate these days. Having a high profile trial, one that is going to dominate Georgia news, is not helpful for him.
   
   
6. Cameras in the Courtroom: As we have noted multiple times, federal courts are barred from allowing live coverage of trials. That general rule may be set aside for one or both of Trump's federal trials, but maybe not. Georgia, meanwhile, has no such rule, and yesterday's indictment announcement was televised. It is very likely Trump's Georgia trial will get full television coverage. That's almost certainly bad news for him, as viewers will see the evidence for themselves without the "Fox filter," and also because Trump does not have a great courtroom persona. He tends to cross his arms, and huff and otherwise behave in ways that reflect poorly on him.
   
   
7. No Clemency: We've pointed this out several times, including yesterday, but Georgia makes it very difficult for a criminal defendant to get any sort of clemency. The rules are the way they are because: (1) Southern states like to be "tough on crime" and (2) the rules were, to be blunt, written to disadvantage Black people. Now, however, the shoe is on the other foot. And how.

Although Trump and his team apparently did not get the same sort of heads-up that Jack Smith provided, it was nonetheless obvious that the indictment was coming, and so the spin operation was geared up and ready to go. Not that they did a great job with their response, mind you. You can read the letter that the Trump Campaign posted to his boutique social media platform here. It's the sort of letter that any reader of this site could have written, if they had 10 seconds to spare. Trump also ripped into Duncan, encouraging him not to testify, while inadvertently reminding everyone that it's never too late to add a witness tampering charge.

Sen. Lindsey Graham (R-SC) was on one of the basically interchangeable Fox primetime shows (more below), and gave a pretty good preview of five talking points you should expect to hear from Trump apologists in upcoming days and weeks:

1. This should be settled at the ballot box, and not in a court of law. (Rebuttal: In a manner of speaking, that is how it will be settled, since the decision will be made by the vote of a jury. Did they not teach you that in law school, Senator? Beyond that, however, it is remarkable that Graham can suggest with a straight face that an election fraud case should be settled... at the ballot box.)
   
   
2. This will do a lot of damage to the presidency. (Rebuttal: Agreed. Maybe Trump should have thought about that before doing all these things.)
   
   
3. This will set a bad precedent. (Rebuttal: That if you are president, you should abide by the law? Seems like a pretty good precedent to us. Too bad it wasn't clearly set during the Nixon years.)
   
   
4. It's the most liberal jurisdictions in America—New York City, Fulton County, Washington, DC—trying to put Trump in prison. (Rebuttal: This conveniently "overlooks" the Florida case. Also, despite his pretensions to be a man of the people, Trump's as much a coastal elite as anyone in the country. So, of course, his alleged criminal acts took place in blue cities. Whaddya think was the last time he spent the night in a place that has a PVI of R+10 or redder?)
   
   
5. Why is this case being handled by a county prosecutor, rather than a state-level official? (Rebuttal: Because that's how Georgia has divided up its judicial powers. Also, if one is concerned about top-level officials handling things, Jack Smith is plenty high-ranking.)

In general, we don't pay much attention to what Graham has to say, since he constantly talks out of both sides of his mouth. However, he happened to be the first Trumper to get himself in front of a camera yesterday, so...

At the moment, there are still two short-to-medium-term storylines in Georgia. The first is that Willis has given the indictees until August 25 to surrender themselves for booking. We wonder if they will trickle in, a few each day, or if they will all show up on the same day as a demonstration of unity. Whatever happens, the day Trump surrenders himself will undoubtedly get a fair bit of TV coverage, just like the other indictment. And the other one. And the other one.

Also an open question is what judge will preside over the trial. It could well be Robert McBurney, who has overseen the grand jury process. Certainly, he seems well qualified for the job. He's got two Harvard degrees, was an assistant U.S. Attorney, is in his 11th year on the bench, and served for 2 years as Chief Judge of the Atlanta Judicial Circuit. Also, for what it's worth, the profile picture on his LinkedIn page is Speed Racer:

Make of that what you will. In any event, we'll learn soon if McBurney is keeping the case, or if it will go to one of his colleagues.

One has to wonder how well Donald Trump is sleeping these days. Sure, he puts on a blustery front, but he's dug a giant hole for himself. Imagine he gets just one month for each of the 91 crimes he's accused of committing. If so, he'd be in prison until he's 85 years old. He either needs three or four very friendly plea deals, or he needs to bat 1.000 up against three veteran prosecutors and their staffs. Anything less than 1.000, and he goes away at least until his 80s.

The good news for us is that, despite the lack of competitive races on either side of the aisle, 2024 could end up being the most interesting presidential election in recent memory. And maybe ever. What on Earth happens if Trump is both a convicted felon and the owner of a majority of RNC delegates on, say, June 1 of next year? Your guess is probably about as good as Ronna Romney McDaniel's. (Z)