Welcome to the Circus: Georgia Gets in the Ring

On Monday, August 14, 2023, the Fulton County District Attorney, Fani Willis, filed a list of criminal charges against Donald Trump, proving conclusively that a grand jury of the state had voted that there was probable cause that Trump had violated state law related to his investigation into the 2020 presidential election.

Except—oops! The grand jury had not voted yet, and the filing was in error. The following day the grand jury in Fulton County voted, obediently rubber-stamping Willis’s claims (“I could indict a ham sandwich,” as Brooklyn United States Attorney Thomas Puccio famously said), and she trotted back to the podium to crow.

So, what next? First, Trump’s attorneys undoubtedly have to consider various options related to the public accusation that Trump was indicted prior to the grand jury even finishing deliberations, much less voting. Is this a type of defamation? Does this prejudice any jury? Is this grounds to dismiss the indictment, or grounds for appeal? I am skeptical of all of these claims, but the screw-up does obviously make Willis and her office look like a bunch of clowns. One thing we do know: We will never discover why the filing was made.

Second, what specific process will we see in coming days? This is now the fourth criminal indictment against Trump, the others being the Alvin Bragg New York state 34-count business crimes indictment, the 37-count federal prosecution in Miami related to “mishandling” classified documents, and the federal Jack Smith four-count “conspiracy to do politics” indictment. But in those three prior cases, Trump was spared the “ordinary” process of being handcuffed and booked and held in custody prior to an arraignment. In the deep South, however, they love a circus (clowns, remember?) and it is highly likely prosecutors will insist Trump be handcuffed and his mugshot taken. The Democratic fundraising opportunities are just too good.

Frankly, the only reason for this “ordinary” process is managerial: The sheer volume of perps in a weekend lockup justifies a system for holding individuals in custody temporarily while they wait for a judge to take an initial look at their case and determine conditions of pretrial release. With Trump, however, the man is not a flight risk (he’s running for president, remember?), and his case is extremely easy: There is literally no reason to put him in a prison jumper, take a mugshot, and hold him for any period of time. In fact, doing so is a waste of state resources, but it’s Georgia, so why not?

Third, and most critically, what about the substance of the indictments? We now have Trump and eighteen individuals, mostly lawyers, indicted in Georgia on state RICO charges. For the uninitiated: Under federal and state Racketeer Influenced and Corrupt Organizations Acts, prosecutors can charge individuals for non-crimes, if those non-crimes were committed in furtherance of actual crimes. In essence, it is designed to go after Mafia dons (get it?) or others insulated from criminal activities, but who sit at the top of criminal enterprises. Typically these are proved with a “hub and spoke” theory, where prosecutors prove two or more “spokes” of crimes, such as breaking into election equipment, and then try to tie the spokes to the hub—in this case Trump.

I have followed the Georgia issues for quite some time and had a strong suspicion that Jack Smith would use federal RICO and Georgia predicates to go after Trump. But other legal experts have noted that the federal RICO statute isn’t as aggressive as the Georgia one, and my understanding is that the various Georgia predicates are thin. Stuck between a fact-intensive and complex (and risky!) indictment relating to Georgia or a paper-thin but showy indictment that is more readily understandable by the public, Smith wisely chose the latter. He would likely lose both cases, but at least the second option will give him good left-wing press in the meantime. Further, some commentators have suggested that Mark Meadows is cooperating with Jack Smith; by indicting him, Willis could be signaling that Georgia and the feds are not playing well together: Another reason for Smith to leave Georgia behind.

Reading through the 41-count, 98-page Fulton County indictment, the facts are already well-known. One major event involves Ruby Freeman. Based upon my discussion with witnesses, this low-level Georgia poll worker got spooked after the November 2020 election, asked to speak at a police station, and copped to witnessing, and participating in, voter fraud in the state. Since then, the story in the media has flipped: Rather than whistleblowing on Democratic voter fraud, Ruby Freeman is the victim of witness intimidation. Bringing her to the witness stand and disclosing the evidence she provided (including the police body cam footage where she admits to the fraud) is probably not wise for Democrats in the state.

A second spoke of the wheel involves Coffee County. There, a marquee forensics firm, SullivanStrickler LLC, engaged at Sidney Powell’s behest, ran diagnostics on voting machines that clerks had authorized her to explore. The indictment lists her criminal act as contracting with SullivanStrickler. This is telling, because Willis is trying to exonerate the major, heavily lawyered corporation that actually did the dirty work—which was, to my understanding, totally lawful. Hmm.

The third spoke involves the so-called “fake electors.” Without belaboring the point, this is one of those areas in constitutional law where sovereign rights of a state operate in a vacuum. There is historical precedent for multiple slates of electors competing to cast their votes in the Electoral College, but this time, somehow, it is criminal.

Finally, there is a mishmash of charges against Trump or advisors related to public statements, or calls to public officials, under RICO statutes. Act 32 in the indictment, for example, lists Trump’s tweet that Kemp (and by the way, where is the governor here?) should call a special session of the legislature as, and I quote, “an overt act in furtherance of the conspiracy.” I don’t need to remind you that the First Amendment protects all of this activity, but I wouldn’t be shocked if a hand-picked jury in Atlanta and a left-wing judge conspire to make this stick—at least at the jury-trial level. But the Georgia Supreme Court is fairly establishment conservative, and on this and other counts there is some likelihood they weigh in.

The upshot of this entire saga is that we will coast through the nigh-inevitable Republican presidential nomination of Trump in 2024 before any of his four indictments are brought to trial, and the presidential election of 2024 will occur before there is final resolution on any particular legal issue. This is perfect for Democrats and weak Republicans, because they can cast aspersions on Trump without having to deliver the goods, and can continue to fundraise in a complicit media environment.

Lessons? For my part, there are two. First, I am going to be largely ignoring these matters. Left-wing legal experts on CNN and elsewhere will be tossing out wild theories left and right for views: Can the President pardon himself? Can he run if he’s in prison? The practical effect of these questions is to make the viewer believe Trump is already a criminal, or that the prosecutions are in any sense legitimate. Based upon the weakness of the cases and the timeline, I sincerely doubt any of these questions will ever become relevant. But it is certainly the case that after years of Jimmy Carter and others chastising foreign governments for engaging in electoral chicanery with opposition candidates, our own government has now joined the party. Embarrassing.

The second and greatest lesson learned from this, to me, is that prosecutorial resources in a single county (even in purple states) can be commandeered to gain national media and can empty the public fisc to drain the campaign coffers of enemy politicians. Against an overweening federal government, county officials—sheriffs, clerks, boards of education, prosecutors—still reign supreme in the United States. Right-wing prosecutors could learn a lesson here: You might lose a few soccer moms by trying to lock up Hunter Biden or Marc Elias, but you will raise tons of money to more than offset that. Run the Bragg playbook, and you can stave off electoral challenges from left and right. Run the Willis or Abrams playbook, and you might make a national name for yourself. In the new America, it doesn’t matter if the work you do is garbage.

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