Usually I feel comfortable talking about the politics and legality of the various Trump indictments, based on the many reliable pundits out there willing to comment thereupon. But now we’re talking about a state indictment, and not any state, but Georgia. With a Georgia prosecutor, judge, and jury, under a Georgia Racketeer Influenced and Corrupt Organizations (RICO) statute. Good luck! There is no way I am going to read ninety-eight pages comprising forty-one counts against nineteen co-conspirators, then start into what it all means in Georgia!
So in this seemingly unending series about the former President’s legal troubles, I will concentrate on a few of the externals to the charges and trial, and more on the ramifications.
First, despite what you may hear from the defense, Fani Willis has a long, solid history as a prosecutor. She may have political motivations (see Shapiro, Josh), but that doesn’t mean she isn’t competent. She is.
Second, you’ll hear reference to all kinds of silly comments in the charging documents, citing meetings and phone calls and the like. No, those things aren’t illegal, but if you use them to do something illegal, they can be cited as evidence, especially of conspiracy.
Third, state and federal governments can try a person for the same crime because they are separate sovereigns, thus it is not double-jeopardy. But the Supreme Court (SCOTUS) has at times held that when such a case exists, it is proper for the federal case to proceed rather than the state one. Here we have them marching in parallel. No one short of the Supreme Court will decide on this point, so look to that outcome (an appeal all the way to SCOTUS, if Trump et al are convicted). I’m not saying SCOTUS will overturn, just that this is a rare case where a form of double-jeopardy could play a role.
Finally, many (but not all) the charges in Georgia also involve whether the President and his co-conspirators knew they were wrong. So once again, the court will dig deep into the psyche of Donald John Trump. Good luck with that!
Stepping back from the immediate indictment, what are the implications?
First, we now have a precedent for the indictment of a major candidate for office by partisans (officials, yes, but partisan ones, too) during the election season. Let that sink in. Does any rational human being not see that prosecutors in Florida and Texas will be looking at the next crop of Democratic hopefuls for excuses to bring charges during the run up to the 2028 campaign? Care to bet me no state will? Whatever the outcome of the trial, the precedent is set.
Second, I yield to the members of the Fulton County Grand Jury that they believe a real harm was done to the state by the Trump alleged conspiracy. They heard the evidence and so voted. I question the need to bring the case in the first place. Sure, if Trump skated free on the federal charges, a case could have been readied to file, much as corrupt police officers are sometimes charged with federal civil rights violations after being give a pass by a state jury for some violent act. But the prosecutors wait to see how the first case comes out. In this case, it appears to me to be piling on, especially so as it will affect the campaign. Another case of “when Trump is involved, anything goes.”
Third, there is case law that federal officials cannot be tried by states for actions performed in the line of their federal duties. This is the precedent Mark Meadows, the former White House Chief of Staff, is citing in asking the trial be moved to federal court. Now courts will have to parse out a new precedent whether all actions taken by a federal employee are “in the line” of duty. Mark Meadows is cited for arranging a meeting. If you are a federal employee, you should be very interested in how this part plays out. Imagine a future where any state can charge you and you have to prove your actions were “in the line” of duty? Imagine Assistant Deputy Secretaries in DHS charged by Texas for crimes committed by unauthorized border-crossers. What a world!
Fourth, I have already seen several gleeful reports that this case will include the booking and mugshot of the defendant, and a televised trial. I have mentioned the blood-lust Trump inspires before, and how undignified, even Trump-like, it is. Before anyone gets their hopes up, recall that a little thing called the Secret Service is involved. Things may not happen quite the way some people hope. And they shouldn’t hope for such things anyway. It’s base.
Fifth, whatever the outcome, it has no practical significance for the election. Trump can be tried, found guilty, and sentenced, and if he wins the electoral college, he will still be President. There is even reason to believe that under that scenario, the US Department of Justice would intervene in the case, calling for either the suspension or the overturning of the result as an infringement on the prerogatives of the Executive Branch. Which would be another bad precedent.
Sixth, while I have respect for the prosecutor and the judge in this case, I remind everyone that this is a state jurisdiction trial. Federal prosecution is most feared by all the accused, as federal prosecutors have an impressive record: last year, .4% of federal defendants went to trial and were acquitted. Almost 90% pled guilty. I am not reassured that the state office responsible for handling the posting of the indictment did so before the Grand Jury voted. That might be an omen for things to come.
So in summary, most of what the indictment alleges is factually provable, and some is obvious. Whether that constitutes a conspiracy under Georgia law I’ll leave to the good men and women of the jury. I would note that Stacey Abram has been walking around claiming the 2018 Georgia Gubernatorial election (which she lost) was “flawed” and refusing (still) to concede, a fact I think will be mentioned at trial. Even a conviction has little relevance for the federal outcome, although the treatment of the accused, the effect on a campaign, and the legal precedents set will be with us for decades.
That’s a potentially high price for a mugshot.
The law of unintended consequences…I do believe applies here…
My guess is that a Trump defense in Georgia bringing up Stacy Abrams would be laughed out of any court.
On Stacy Abrams in 2018: Yes in 2018 she refused to concede, because she claimed that the electoral process was flawed, but she never/never said (unlike Trump) that she was the real governor. She always accepted that Kemp won under a system she thought was discriminatory. See https://www.cnn.com/2021/12/03/politics/stacey-abrams-concession-2018-georgia/index.html.
In the 2022 election she openly conceded on election night. See https://www.pbs.org/newshour/politics/watch-live-stacey-abrams-speaks-at-georgia-gubernatorial-campaign-headquarters-on-election-night#:~:text=Brian%20Kemp,-Politics%20Updated%20on&text=ATLANTA%20(AP)%20%E2%80%94%20Democratic%20challenger,rematch%20of%20their%202018%20race.
I would expect the comparison to be made for two reasons: first and foremost, for the court of public opinion. You may not agree, but it will play great with the MAGA crowd, and may influence some undecideds. Remember, the case may be heard during the campaign. Second, while I agree the cases are different, there is an element in the many charges that targets things Trump said–not what he subsequently did. That is an opening for the comparison. As to how the court rules? As I said, it’s Georgia, who knows?