The lawyers went down to Georgia

Former President Donald Trump is now facing a fourth criminal indictment, this one in Georgia. Fulton County District Attorney Fani Willis has indicted the former president and multiple co-conspirators under Georgia’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) for what she alleges was a conspiracy to steal the 2020 election. It is not without irony that the charges are based on Trump’s claims that the Democrats stole the election.

I have practiced law in Georgia and have experience with civil cases that involved the RICO statute. There are a few things to understand about the nuances of the Georgia case. But first, there are more practical legal matters. For example, the governor of Georgia does not have the pardon power under the Georgia Constitution. Even if Brian Kemp wanted to, he could not pardon the former president. Likewise, Georgia’s governors have no power to remove district attorneys. Trump supporters have advanced both ideas but neither action is legal under Georgia’s constitution.

As for RICO, Georgia has a much more expansive law than the federal government, with many more state laws that can be used for charges. The Georgia RICO statute also requires less proof to show a criminal enterprise has been formed and less proof to show a comprehensive conspiracy. If the prosecutors can show two separate crimes were committed to further a common purpose, they can show a violation of RICO.

In the case at hand, the prosecutors argue that prior to the November 2020 election, Trump already intended to claim that he had won the election but it had been stolen. Each action thereafter, along with the multiple parties involved, set out to overturn a lawful election through criminal means. What gets lost on many is that much of what the Trump team did was legal. The indictment outlines a number of legal acts. For example, people made calls to get contact information for various elected officials. Trump used his Twitter account to highlight different hearings about the election. But the prosecutor claims all those legal acts were done to further a criminal enterprise to steal the election.

Unfortunately for Trump, because of the way RICO laws work, a number of actions that are independent and not controlled by Trump can be tied to Trump if the prosecutors show those actions were all to advance the conspiracy. The prosecutors allege false statements were made in court cases and state legislative hearings. They further allege that some of the lawyers who made those statements knew they were false. Prosecutors also allege multiple people tried to intimidate or co-opt an election worker by encouraging or pressuring her to give false testimony. Even if done without the former president’s knowledge, those acts can be imputed to him as part of RICO.

Complicating matters for the Fulton County prosecutors is their own present use of RICO. Right now, Fani Willis is using RICO to prosecute the YSL gang in Atlanta. Judge Ural Glanville is the chief judge of Fulton County Superior Court, and he has been picking a jury since Jan. 2 in that case, which started with about 17 defendants. There are still about six jurors left to pick. Each defense attorney gets to vet the jurors.

Once Judge Glanville gets the jury seated, Willis is expected to use 350 witnesses and expects to take six months for the trial. Judge Glanville has been on the bench since 2005 and moves quicker than most judges in Fulton County. The judge assigned to the Trump case, Scott McAfee, has been on the bench for less than six months. There is no way the Trump trial moves quickly, particularly when Willis’s indictment against him has three others in different states ahead of her own.

Because the DA indicted Donald Trump and Jeffrey Clark, both members of the federal government’s executive branch at the time, both men could argue the case must be removed to federal court, which would expand the jury pool to more counties in North Georgia. This will not be a fast-moving case, and federal courts might intervene.

Lastly, and most importantly, it is notable in the 98-page indictment how little Trump’s personal actions were cited compared to many of his lawyers and others. Though partisans on the left might dismiss it, Trump has a very good claim that he believed his personal lawyers and allowed them to take the actions they thought necessary to secure evidence to prove Democrats stole the election. His state of mind and reliance on legal advice does matter. It is entirely plausible that jurors, weighed down by the idea of sending a former president to prison, send his co-conspirators to prison for their own actions, but give Trump a pass.

It is a weighty issue to send a president to prison—an act that has never happened. In an emotional age, Democrats eager to send Trump to prison should not underestimate the burden of that decision.