The Devil Went Down to Georgia

By now you know that Trump has been indicted, for the fourth time, in Fulton County Georgia. His co-defendants include people like Rudy Giuliani and other lawyers like John Eastman, Sidney Powell (the “kraken”), attorney-general-wannabe Jeff Clark, and more, as well as lesser known figures in Georgia and others involved in the campaign. You can find the full indictment here. It’s a long and somewhat difficult slog, but rewarding.

Possibly the most important point for the future of democracy: In Georgia state proceedings, there are cameras. Not just for trial but every step of the way. That was literally true as we were all able to watch the indictment get hand-walked to the judge. This is what it means to have open courtrooms.

The impact when people can see it for themselves can’t be overstated. That’s especially true when it comes to hearing the evidence and the legal arguments the lawyers make. There is no excuse for not having cameras in federal courts. But I’m glad we have them in Georgia. It’s far more difficult for right wing media to call the prosecution a witch hunt when people can see it for themselves. Just like public opinion shifted in some unlikely corners when the public was able to view the trial and hear the evidence against the police officers who murdered George Floyd for themselves, I expect the same could happen hear.

There are a lot of crimes charged in the indictment, but they all center on five basic areas of misconduct:

• False statements around voting fraud made by Trump cronies, including Giuliani, to Georgia officials,

• The Sidney Powell led breach of voting machines in Coffee County,

• Trump’s calls to state officials, including Secretary of State Brad Raffensperger, begging them to overturn the election,

• the attacks on election workers like Ruby Freeman and Shaye Moss, and

• the creation of slates of alternate electors in an attempt to steal the election.

All 19 of the defendants are charged with the RICO violation in Count I of the indictment. Forty additional counts follow, one or more defendants in each. Trump is charged in 12 counts in addition to RICO:

• 3 counts of soliciting a state official to violate their oath of office

• 2 counts of conspiracy to commit forgery

• 2 counts of conspiracy to make false statements

• 2 counts of making false statements

• 1 count of conspiracy to impersonate a public officer

• 1 count of conspiracy to file false documents

• 1 count of filing false documents

In some cases, both a conspiracy to do “the thing” and doing “the thing” itself are charged. In other words, being charged with a conspiracy to forge documents, as well as the forgery itself. That is because conspiracy is a crime that is committed once a defendant makes an agreement to do the thing and one member of the conspiracy takes a step towards doing it (an “overt act”). The incomplete or inchoate crime of conspiracy is a separate crime from the doing the act itself and can be charged separately. The key to understanding this is remembering that in the case of the conspiracy, it’s the agreement to commit the crime that violates the law.

Today, Fulton County DA Fani Willis sent the judge a proposed order that, if he adopts it, calls for the defendants to be arraigned during the week of September 5. Pursuant to Georgia law, they receive notice of the time for arraignment at least five days in advance. It’s easy to anticipate the Trump camp being outraged by the short timeline and demanding more time. But that’s how Georgia law works. This will be the first opportunity to see how Judge Scott McAfee will react to the inevitable deluge of delay tactics that are about to come his way. Willis has also given defendants until Friday, August 25 at noon to voluntarily surrender for processing. If they do not, they will be arrested.

When the defendants surrender, they will show up at the Fulton County jail on Rice Street, a facility a friend recently said smelled like “bologna and body odor.” That’s a pretty gentle characterization of the facility, which is currently being investigated by DOJ to determine whether prisoners’ rights are being systematically violated. When the investigation was announced, the U.S. Attorney in Atlanta, Ryan K. Buchanan said, “The recent allegations of filthy housing teeming with insects, rampant violence resulting in death and injuries, and officers using excessive force are cause for grave concern and warrant a thorough investigation. This investigation is part of our ongoing efforts to ensure that citizens are safe, and their constitutional rights protected, even while they are in custody.” Although it’s unlikely that Trump or his co-defendants will remain in custody for longer than it takes to process them, it’s ironic that the former president, who was notoriously unconcerned with how police treated criminal defendants, will find himself in a facility whose conditions are so deficient that they warrant federal scrutiny.

The reported conditions in the Rice Street are horrific. As Merrick Garland said when the investigation was announced, “People in prisons and jails are entitled to basic protections of their civil rights.” That does not appear to be the case in Fulton County’s jail. DOJ’s work under the Civil Rights of Institutionalized Persons Act (CRIPA) is some of its most important. No minimizing of the seriousness of the situation and the violation of the rights of people in custody there from me. But it’s difficult not to compare Rice Street to the earlier settings Trump has been processed and arraigned in. They were practically antiseptic by comparison. This will be an opportunity for him to face the reality of prison life for far too many people held in custody. Some of his co-defendants may see the surroundings and seriously consider whether they want to risk spending years in a Georgia prison.

Could Trump be held in jail pending trial? My former DOJ and current MSNBC colleague Andrew Weissman has argued Georgia law permits a judge to deny Trump bail unless he can prove he doesn’t pose a risk of intimidating witnesses or obstructing justice. Andrew points to a recent social media post where Trump encouraged a Georgia witness to avoid grand jury testimony. Witness tampering extends to any effort to prevent, delay, or hinder a witness from testifying. We don’t know yet if Fani Willis will seek detention, but Andrew raises an interesting point. Trump’s lawyers will surely claim his posts are just jokes, or locker room talk, or whatever their excuse du jour is. But the question will be how the judge views them. Are they actual intimidation or just a guy with a big megaphone strapped to his mouth blowing off steam? Trump avoids accountability for this sort of conduct, as well as for the threats he makes against people, because instead of doing it face to face, he uses social media. If he had told the witness face to face that he shouldn’t testify as opposed to “truthing” it, there would have been little question prosecutors would take action if they learned of it. We’ll likely learn at arraignment how Judge McAfee intends to handle this behavior.

What kind of time would the former president do in prison if convicted? The RICO charge carries the most serious penalties, the statute says from five to 20 years in custody. Although many people interpreted this as a mandatory minimum sentence of five years, and that five years was a floor the judge couldn’t go below if Trump was convicted, that is not the case. While many Georgia felony statutes are written to require a sentence of “at least X years,” Georgia crimes don’t carry a mandatory minimum sentence unless the legislature explicitly says the sentence can’t be probated when they write the law. They do this when they mean to; for instance, a Georgia law involving street gangs provides a judge may not substitute probation for the time in custody the statute calls for. But in the case of RICO, a Georgia law, O.C.G.A. § 17-10-1, allows for the sentence to be probated at the judge’s discretion. However, in an earlier RICO case involving educators and a grade cheating scandal Willis prosecuted, the judge issued sentences that were longer than five years for some of the most culpable defendants. That case should serve as a stern warning to Trump about what could lie ahead.

So, the perfect phone call it wasn’t. Trump’s call to Georgia Secretary of State Brad Raffensperger begging for 11,780 votes launched an investigation that resulted in this sweeping prosecution. We all knew from the moment we heard the tape of the call that it was a criminal act, an effort to steal an election Trump had lost. Now that call is at the heart of a RICO prosecution that charges Trump and his co-defendants with using false claims of voter fraud to commit election fraud.

The first motion from a defendant came from Mark Meadows, who wants to remove the prosecution from state to federal court. Long time readers of Civil Discourse will remember we discussed this procedure back in February. Even experienced lawyers are often surprised to learn it’s possible for a defendant to have an indictment brought in state court transferred to federal court.

The law provides a mechanism for federal officials to avoid criminal prosecution in state court, but this is a novel situation, to say the least, for applying that procedure. It is not the more typical case, where a federal law enforcement agent wants to avoid being prosecuted in state court, because he has defenses that could be presented in federal court that cannot be used in a state prosecution. Meadows wants a pass because even though he was involved in perpetuating what he knew to be the myth of voter fraud, he was doing mundane “official acts” that a chief of staff does for a president. While his argument is not entirely frivolous and the courts will have to consider both sides carefully, it feels disingenuous. The defendants committed serious state crimes related to an election that was administered by Georgia officials, and it would be an injustice to remove this case, especially because the prosecution doesn’t interfere with the operation of the federal government, a primary reason we have this obscure rule in the first place. The request to remove the case is more about delay and an effort to get a conservative jury pool than it is about protecting federal officials from intrusive state prosecutions. A federal judge has set a hearing for August 28, not quite two weeks away.

You may want to refresh your recollection of the law by reviewing the earlier piece on it here, and we’ll assess the arguments as soon as we see Willis’s response to Meadow’s petition—it’s due next Wednesday.

The defendants are all presumed innocent until proven guilty. That’s a critical principle of our justice system, one that separates us from banana republics and countries were people can be locked up because they’ve run afoul of powerful people. But this is Fani Willis’s 11th RICO case. She does not strike me as someone who would indict a case she does not believe she can win; she has plenty of other work on her plate.

We’re in this together,

Joyce