Aug 18: Norman Eisen & Amy Lee Copeland, This Indictment of Trump Does Something Ingenious

The Guest Essay as published in the New York Times on 17 Aug 2023

This Indictment of Trump Does Something Ingenious

By Norman Eisen and Amy Lee Copeland, The New York Times, 15 Aug 2023

When the Fulton County, Ga., district attorney, Fani Willis, filed criminal charges against Donald Trump and over a dozen of his allies for their attempt to overturn Georgia’s 2020 presidential election results, she did something ingenious.

In contrast to the special counsel Jack Smith’s latest laser-focused federal indictment of Mr. Trump, Ms. Willis charges a wide range of conspirators, from people in the Oval Office to low-level Georgia G.O.P. functionaries, and is the first to plumb the full depths, through a state-focused bathyscaph, of the conspiracy.

Her case also provides other important complements to the federal matter: Unlike Mr. Smith’s case, which will almost certainly not be broadcast because of federal standards, hers will almost certainly be televised, and should Mr. Trump or another Republican win the White House, Ms. Willis’s case cannot be immediately pardoned away. It offers transparency and accountability insurance. As she said in her news conference on Monday night, “The state’s role in this process is essential to the functioning of our democracy.”

But the indictment stands out, above all, because Georgia offers uniquely compelling evidence of election interference — and a set of state criminal statutes tailor-made for the sprawling, loosely organized wrongdoing that Mr. Trump and his co-conspirators are accused of engaging in. It is a reminder of the genius of American federalism: When our democracy is threatened, states have an indispensable part to play in protecting it.

At 98 pages, Ms. Willis’s indictment is more than twice the size of Mr. Smith’s indictment in his Jan. 6 case and contains 19 defendants to his one. The indictment charges 41 counts (to Mr. Smith’s four) — among them, Georgia election crimes like solicitation of violation of oath by public officer (for Mr. Trump’s infamous demand to Georgia’s secretary of state, Brad Raffensperger, to just “find 11,780 votes”) and state offenses like forgery and conspiracy to commit forgery (for creating fake electoral certificates) and conspiracy to commit computer trespass (for unlawfully accessing election machines in Coffee County to attempt to prove that votes were stolen).

The large cast of defendants populates a complete conspiracy chain of command and features the famous (Mr. Trump, his chief of staff Mark Meadows and his lawyer Rudy Giuliani), the infamous (the Trump lawyers John Eastman, Ken Chesebro and Jeffrey Clark) and the otherwise unknown (including Georgia state false electors and local Trump campaign allies without whom the plot would have stalled).

Ms. Willis ties them all together by levying one charge against Mr. Trump and each of the 18 other defendants under Georgia’s Racketeer Influenced and Corrupt Organization Act, or RICO, accusing Mr. Trump and his co-conspirators of functioning as a criminal gang.

American law has long recognized through the crime of conspiracy that combinations of criminals are more dangerous than lone wolves. RICO is conspiracy on steroids, providing for stiffer penalties and other advantages like bringing multiple loosely connected conspiracies under one umbrella.

Georgia has one of the most capacious RICO statutes in the country. The state’s legislature enacted it specifically to “apply to an interrelated pattern of criminal activity” and mandated courts to “liberally construe” it to protect the state and its citizens from harm. Under the law, prosecutors can charge a sprawling criminal enterprise and even include individuals who may not have known “of the others’ existence,” as one court put it.

Here, the statute may be triggered by violations of an array of federal crimes as well as over 40 charges specific to Georgia, including forgery, false statements and influencing witnesses.

Georgia RICO has become Ms. Willis’s signature. She applied it in cases like the Atlanta teacher cheating scandal, in which educators engaged in a wide-ranging scheme to inflate scores on standardized tests, and the prosecution of the rapper Young Thug, in which he co-founded a street gang that was accused of committing almost 200 criminal acts.

In using RICO, Ms. Willis accuses Mr. Trump of functioning like a gang leader overseeing a theft ring, except instead of stealing cash or cars, he and his allies are accused of attempting to purloin the Georgia presidential election results.

The overall charge includes four core schemes. The first was to pressure government officials to advance the objective of securing Georgia’s electoral votes for Mr. Trump, even though he lost. For the evidence here, in addition to Mr. Trump’s call to Mr. Raffensperger, Ms. Willis details other efforts by Mr. Trump and his co-defendants — including Mr. Giuliani’s pressuring of state legislators, Mr. Meadows’s pressure on election authorities and the co-conspirators’ lies and intimidation targeting the ballot counters Ruby Freeman and Wandrea Moss, who goes by Shaye. This also includes efforts in Washington that affected Georgia, such as the Department of Justice lawyer Jeffrey Clark’s preparation of an allegedly fraudulent draft letter targeting the state.

The second scheme was the organization of electors falsely proclaiming that Mr. Trump was the winner in Georgia. Ms. Willis alleges that Mr. Trump personally participated in this effort; for example, he called the Republican National Committee with Mr. Eastman from the White House to organize the fake slates of electors, including in Georgia. And she charges a great deal of other activity in and outside Georgia.

The third scheme was the unlawful accessing of voting machines in Coffee County, a rural county southeast of Atlanta. The indictment asserts that, after a White House conversation about getting access to election machines to prove supposed vote theft, Sidney Powell, a lawyer tied to Mr. Trump, along with Trump campaign allies and computer consultants, conspired to gain access to voting equipment in Coffee County.

Ms. Willis’s inclusion of that plan spotlights what has been one of the more neglected aspects of the nationwide effort. Mr. Smith does not even mention it in his federal indictment. Yet the Willis indictment alleges that this was part of a plan discussed (in general terms) in the Oval Office.

The fourth and final scheme is what has become a trademark allegation against Mr. Trump and his circle: obstruction and cover-up. Ms. Willis alleges that members of the conspiracy filed false documents, made false statements to government investigators and committed perjury during the Fulton County judicial proceedings.

In addition to the RICO charges, each of the 19 defendants is charged with at least one other offense. Perhaps most telling among these is the charge against Mr. Trump and six others of felony solicitation of violation of oath by a public officer. This fits Mr. Trump’s demand for those 11,780 votes like a glove.

Mr. Trump has already begun to defend himself, trying to get Ms. Willis and her special grand jury disqualified, based on an array of supposed conflicts and other grievances. The Georgia courts have already repeatedly rejected those arguments. He will also probably employ defenses similar to ones he and his legal team have laid out in pending criminal matters elsewhere, seeking removal to federal court and advancing First Amendment and intent defenses that have been picked apart by many legal experts.

He and his co-conspirators may attempt to challenge the RICO charges on technical grounds, for example, arguing that the conspiracies are not sufficiently related under the statute. But Ms. Willis powerfully alleges otherwise, in particular emphasizing the unifying objective of Mr. Trump’s wrongfully seizing Georgia’s electoral votes.

That all of this is likely to play out on television only deepens the historic nature of the indictment. Georgia law makes generous allowance for court proceedings to be broadcast, with the state rightly considering open courtrooms to be “an indispensable element of an effective and respected judicial system.” Assuming that rules against televising federal trials stand, the Georgia trial would be the only one that the public could watch as it unfolds. We know from the Jan. 6 hearings — as well as, in an earlier era, the Watergate hearings — the power of seeing and hearing these events. And they will remain for viewing in posterity as a lesson in the rule of law.

There is one final important advantage of the Georgia case. It is shielded from what may be Mr. Trump’s ultimate hope: the issuance of a pardon should he or another Republican be elected president in 2024 (or a command by a Republican that the Justice Department simply drop the case). A president’s power to pardon federal offenses does not extend to state crimes.

And pardons in Georgia are not an unreviewable power vested solely in the chief executive. They are awarded by the State Board of Pardons and Paroles — and are not even available until five years after completion of all sentences.

The indictment from Ms. Willis strongly complements the federal case. It adds dimensionality, transparency and additional assurance of accountability for the former president and those who betrayed democracy in Georgia.