Trump Indicted: Part IV

Happy Wednesday! For the first time in history, according to Nielsen data, linear television accounted for less than 50 percent of Americans’ total viewing time in July—with cable TV accounting for 29.6 percent and broadcast TV 20 percent.

The other 50.4 percent? This YouTube video of a pug eating watermelon. 

Quick Hits: Today’s Top Stories

• Federal prosecutors in a court filing yesterday denied recent allegations made by Hunter Biden’s legal team that prosecutors had “reneged” on a plea deal with their client, arguing that “the two proposed agreements were drafts that either party could propose changes to.” The lawyer who represented Hunter Biden in negotiating his plea deal with the Justice Department over alleged tax and gun offenses also stepped down Tuesday and vowed to testify as a witness on behalf of the president’s son in an attempt to save the plea deal which fell apart in court last month.
• Charles McGonigal, a former high-ranking FBI agent, pleaded guilty on Tuesday to helping a sanctioned Russian oligarch in exchange for secret payments. Formerly the top agent at the FBI’s New York counterintelligence office, McGonigal now faces a maximum of five years in prison—rather than the 20 years he could have faced had he not admitted to accepting $17,500 from Russian oligarch Oleg Deripaska.
• President Joe Biden said on Tuesday that he and Jill Biden will travel to Hawaii “as soon as we can” to survey damage in the aftermath of wildfires which have killed at least 99 people on Maui. Biden declared a federal emergency and issued a statement expressing his condolences for the lives lost last week, but has faced criticism from Republicans who argue he has not adequately addressed the tragedy.
• A federal judge on Monday dismissed a lawsuit brought by the libertarian Cato Institute and other free market groups that had aimed to block the Biden administration’s latest student loan forgiveness push. The decision is a win for Biden, who announced changes to income-driven repayment plans last month in an effort to cancel debt for more than 800,000 borrowers after the Supreme Court struck down a more ambitious loan forgiveness program.
• Chinese officials will no longer share data on the country’s youth unemployment rate, which has spiked in recent months, Beijing announced yesterday. China has recently attempted to restrict economic data as its economy spirals; the country’s central bank also unexpectedly cut key interest rates in an attempt to spur growth.
• Retail spending in the U.S. grew at the fastest pace since the start of 2023 last month, according to new data released by the Commerce Department yesterday. Sales in the retail sector rose a seasonally-adjusted 0.7 percent from June, picking up from a 0.3 percent gain the prior month and outpacing July’s 0.2 percent increase in consumer prices. The data signal that consumer spending remains strong even as the Federal Reserve attempts to cool the economy with higher interest rates.
• The Nevada Republican party announced Monday that it will hold a presidential caucus on February 8, 2024, jumping ahead of South Carolina’s ​​February 24 primary. The party’s decision defies Nevada’s state legislature, which in 2021 passed a law requiring a state-run primary, currently scheduled for February 6; the state GOP has maintained that it will allot delegates through its caucus, rather than the preceding primary.

Trump and 18 Co-Defendants Indicted in Georgia

What do former President Donald Trump, Young Thug, and Kanye West’s onetime publicist have in common? They’re all facing racketeering charges from Fani Willis, the Democratic district attorney in Fulton County, Georgia.

Trump was hit with his fourth and most expansive indictment Monday, this time for his attempts to overturn the 2020 presidential election results in Georgia and promulgate his voter fraud falsehoods. But, unlike special counsel Jack Smith, Willis did not stop at Trump—she also indicted 18 co-conspirators in the effort under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, a legal tool she’s previously wielded in unconventional ways against other high-profile defendants. The charges are serious—with mandatory sentencing minimums if convicted and beyond the reach of a presidential pardon—but Republicans by and large weren’t fazed. With four indictments in as many months, Trump, his allies, and his GOP primary opponents have fallen into patterns of denial and deflection that are proving just as useful this time around. 

The indictment, handed up and unsealed just before 11 p.m. ET Monday night, is more substantial than almost anyone expected, coming in at a hefty 98 pages and containing 41 felony charges. “A Fulton County grand jury returned a true bill of indictment charging 19 individuals with violations of Georgia law arising from a criminal conspiracy to overturn the results of the 2020 presidential election in this state,” Willis said during a brief press conference late Monday. In addition to the former president, the defendants include high-profile Trumpworld members—lawyers Rudy Giuliani, John Eastman, and Jenna Ellis; former White House chief of staff Mark Meadows—but also previously unheard-of political operatives and members of the Georgia GOP. 

While both this week’s indictment and special counsel Jack Smith’s August 1 federal indictment address similar post-election conduct by Trump, Willis tells a broader story, spanning Election Night 2020 to late last year and across several states to meticulously outline years of conduct she says includes violations of Georgia state law. Conviction in a state case would put Trump and any of his co-conspirators out of reach of a presidential pardon, which only apply to federal convictions. 

Smith, perhaps for the sake of expediency, has thus far opted not to charge Trump’s alleged co-conspirators in the plot to overturn the results of the 2020 election. But most of those same co-conspirators—including Giuliani, Eastman, Kenneth Chesebro, Sidney Powell, and Jeffrey Clark—are charged in the Georgia indictment.

Those 18 additional defendants aren’t superfluous, bonus “gets” for the prosecution—they’re at the heart of Willis’ case: Trump and his associates, including the several dozen unindicted co-conspirators, were allegedly part of a vast and coordinated criminal conspiracy that violated Georgia’s RICO Act. RICO laws—which, ironically, were championed by Giuliani in New York City as a federal prosecutor in the 1980s—are most closely associated with mafia- and gang-related cases, because they allow prosecutors to link crime bosses to the actions of their lackeys by making them all party to a conspiracy. Using RICO, you can prosecute the mob leader who ordered the murder for having engaged in the illegal scheme, even if he didn’t personally pull the trigger.   

Georgia’s version of RICO is particularly broad as such statutes go. To prove RICO violations in the state, a prosecutor must demonstrate a pattern of two or more racketeering acts by two or more individuals to further the objectives of a corrupt enterprise. Under Georgia law, more than 40 different “predicate” crimes and acts can constitute racketeering for the purposes of making a RICO case. 

Willis  describes Trump’s criminal coterie as “associated in fact,” if not in any kind of formal grouping. Odds are some of the co-defendants have never actually met one another, though Willis argues they “constituted a criminal organization whose members and associates engaged in various related criminal activities.” 

“They didn’t sit down together and incorporate or something like that,” Gabriel Malor, a Virginia-based appellate attorney, tells TMD. “They didn’t all sign an agreement, ‘Oh, we are going to conspire together.’ But they were a group of individuals associated ‘in fact,’ and the fact was, they all had the object of putting Trump back in the White House and overturning the election by means of all of these criminal acts.”

The bulk of the indictment’s 98 pages is devoted to that one RICO charge, laying out a timeline of the activities—161 individual “acts”—that the district attorney alleges constitute the necessary pattern of racketeering behavior. While some of the “acts” she lays out in this section are associated with violations of specific Georgia statutes, others are innocent-enough sounding, but taken together could be evidence of a conspiracy. Each of those statutory violations detailed in the RICO charge constitute the other 40 charges in the indictment. 

Trump is charged with 13 felonies—only one of which is a RICO violation. We could list the other 12 one by one, but they essentially boil down to lying to public officials in ways that are illegal in Georgia. “Simply put, while you might be able to lie to the public in Georgia—or even lie to public officials on matters outside the scope of their duties—when you lie to state officials about important or meaningful facts in matters they directly oversee, you’re going to risk prosecution,” David French, a legal expert and columnist at the New York Times whom you may have heard of, wrote yesterday. “Yet that’s exactly what the indictment claims Trump and his confederates did, time and time again, throughout the election challenge.”

One such example of this ill-timed lying is the well-known January  2, 2021 phone call between Trump and Georgia Secretary of State Brad Raffensperger, who was responsible for administering the state’s elections. During his final days in office, Trump told Raffensperger he needed to find around 11,780 votes in the Peach State—enough to flip it—going on to make a thinly veiled threat of prosecution if the secretary of state didn’t do it: “It is more illegal for you than it is for them because, you know, what they did and you’re not reporting it,” Trump said of his bogus voter fraud claims. “That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk.”

Legal commentators like French thought it would be Trump throwing his weight around and threatening Raffesnperger that would sink him. Instead, the charges related to the call were “solicitation of violation of oath by public officer” and…making “false statements and writings.” Willis says Trump willfully lied to Raffensperger and other state officials, telling them fraud had taken place during the Georgia election when it hadn’t. (“The most basic principles of a strong democracy are accountability and respect for the Constitution and rule of law,” Raffensperger—who soundly defeated a Trump-backed primary challenger last year and soared to re-election—said in a brief statement yesterday. “You either have it, or you don’t.”)

There were plenty of other revelations in the rest of the 40 non-RICO charges as well. Counts 32 through 37, for example, accuse one of the lawyers advising Trump, Sidney Powell, of conspiring with several other defendants—including Misty Hampton, a former elections officer in Coffee County, Georgia—to tamper with the voting machines in the southeastern Georgia county. In order to “investigate” election fraud, the indictment alleges Powell found herself committing it. The Fulton County DA can charge that behavior—even though it occurred outside her jurisdiction—because Powell instigated that plan in Fulton County by hiring a tech firm based there. Employees of the firm then traveled to Coffee County to access their voting machines.

Willis charged several people—including Trevian Kutti, a former publicist for rappers R. Kelly and Kanye West—with crimes related to efforts to intimidate Ruby Freeman, a Fulton County election worker who also testified before the January 6th Committee last year. The indictment alleges at least three of the defendants approached her to try to convince her to make false statements about what she saw on election night. Act 89 of the first count even suggests Stephen Cliffgard Lee, a white pastor who went to Freeman’s house in December 2020, told Harrison William Prescott Floyd, a former director of Black Voices for Trump, that Freeman was afraid to meet with him because he was white. 

The DA also took issue with the plot to field an illegal slate of electors that was so crucial to Smith’s federal election interference indictment. She charged several of the fake Georgia electors with falsely representing themselves—“impersonating a public officer”—and falsifying a certification document that wrongly stated Donald Trump won the election. Trump’s local attorney who advised those fake electors, Ray Smith,was also swept up in the indictment.

Lying usually isn’t illegal, and not all of the activities listed in support of that indictment are necessarily criminal conduct when viewed in isolation. Some of the behavior the indictment details—Trump tweets about election fraud in Georgia, plus phone records that show repeated calls between the members of the so-called enterprise, without details of what exactly they discussed—is seemingly benign. That doesn’t mean tweeting and placing phone calls are now illegal activities, only ones that in this case represent, Willis alleges, an “overt act in furtherance of a conspiracy.” In other words: the phone call is another step towards law-breaking, even if it isn’t in itself a crime.

While Willis has used RICO before, it’s a strategy not without its risks. Trump’s legal team has already signaled it will be mounting a First Amendment defense in Smith’s election interference indictment, claiming the special counsel is seeking to criminalize political speech. Ken White, a former federal prosecutor who is now a defense attorney, believes Willis’ decision to include acts in the Georgia indictment that are otherwise a simple exercise of free speech may be throwing the defense a bone. “She almost seems to have gone out of her way to include [a lot of ‘acts’] that on their face are perfectly legitimate and protected,” White tells TMD. “When you’ve already got this narrative that this is just criminalizing political speech and criminalizing politics, there’s no good reason to lean into that by focusing on a bunch of stuff that’s not necessary to make the charge.”

Even if the jury believes—like White, National Review’s Andy McCarthy, and the Wall Street Journal’s editorial board—that the RICO charge is weak, Willis’ entire case might not be doomed. The 40 other charges stand on their own as simpler, more obviously illegal behavior under Georgia state law, Malor suggests. “It is entirely possible that the jury would come back and say, ‘Well, we don’t think there was a RICO conspiracy here but we do think the president filed a false document in court,’” Malor tells TMD, referencing count 27 of the indictment, a charge against Trump and Eastman. “Get them on the actual substance of the claim, but not the larger conspiracy.”

Opinions differ on whether Willis’ decision to hang this case on the RICO framework ultimately serves her aims—namely, convicting Donald Trump and his co-conspirators. She’s had success deploying it before, including against Atlanta public school teachers caught up in a cheating scandal. She also brought charges under RICO against the rapper Young Thug—though the case has languished for eight months in jury selection. But Trump is no public school teacher or rapper. “It’s my experience as a career prosecutor that creative legal theories and prosecutions do not go well for the prosecution,” a former United States attorney, who requested anonymity to speak candidly about the indictment, tells TMD. 

So why did Willis go with the RICO framework? The statute pulls more activity under the umbrella and adds to the number of defendants and unindicted co-conspirators. Those additional players may have already flipped to give evidence against more important defendants like Trump—or may yet be convinced to, facing the prospect of a long, expensive legal battle. Many of the smaller fish in the case may not be able to afford that long process and the heightened penalties associated with a RICO conviction.

Some of the defendants—namely Meadows and Jeffrey Clark, an assistant attorney general—may try to have their cases moved into the federal jurisdiction in order to get the case dismissed on the grounds that they were working in their capacity as federal employees. Indeed, Meadows’ legal team has already filed such a motion, and Trump may yet do so, though as the former president, his case is more complicated. 

Unless those motions succeed, the defendants are scheduled to report to the Fulton County Courthouse to be arraigned on their charges by next Friday, August 25. That’s two days after the first Republican primary debate, a reminder that these indictments are not happening in a vacuum, but rather in the context of a presidential primary competition Trump already seems to be running away with. 

The former president and primary frontrunner responded to the indictment in typical fashion, with a series of posts on his Truth Social account. “So, the Witch Hunt continues,” Trump wrote around 1:3o a.m. on Tuesday morning, describing Willis as “an out of control and very corrupt district attorney who campaigned and raised money on, ‘I will get Trump.’” The Trump campaign released a statement labeling Willis a “rabid partisan” and claiming she slow-walked the roughly two-year-long investigation so an indictment would fall during his campaign. Willis is an elected Democrat—most DAs are elected partisans—and she launched a new campaign and fundraising site last week, seemingly in anticipation of Monday’s indictment.

As with indictments I, II, and III, most of Trump’s GOP presidential challengers on Tuesday rallied around the man they’re theoretically trying to defeat for the Republican nomination. “We see the legal system being weaponized against opponents,” Sen. Tim Scott said in Iowa. When pressed about Trump’s infamous phone call with Raffensperger, Scott deflected, telling a reporter, “We just draw different conclusions.” Ron DeSantis said the indictment represented the “criminalization of politics.”  Vivek Ramaswamy labeled Willis’ handiwork “another disastrous Trump indictment,” recommending Trump file a motion to dismiss based on the errant leak of a docket sheet Monday detailing charges before the grand jury had voted. The Fulton County Clerk’s office said the sheet was “unofficial and a test sample only,” explaining it wasn’t intended to be released publicly, and the clerk was merely attempting a “trial run” of the system.

Even Chris Christie—who generally seizes every opportunity to bash the former president—was mildly critical of Trump’s inclusion in the indictment, arguing Smith’s 2020 election case sufficiently covers Trump’s alleged wrongdoing. “I didn’t think it was a necessary thing to do once you saw that Jack Smith was charging him federally for the very same conduct,” he told CNN yesterday. “I’m a little bit concerned that this had more to do with ego than anything else.” (Will Hurd and Asa Hutchinson both argued the indictment was further proof of Trump’s unfitness for office.)

Republican lawmakers were even more closely in lockstep behind Trump, doing their best to discredit both the charges and the prosecutors pursuing them. House Speaker Kevin McCarthy argued the case represented a weaponization of government and that Americans would see through the “desperate sham.” House GOP Conference Chair Elise Stefanik expressed confidence Trump will “defeat these bogus charges and win back the White House in 2024.” Several Republican senators—including Ted Cruz and Lindsey Graham—argued Trump’s fate should be decided by voters, not the criminal justice system.

Willis said Monday she would like to go to trial within six months, but she also said she plans to try all 19 defendants together—which means that timeline is wildly unrealistic. Nineteen defendants means 19 sets of defense attorneys, all with different interests and motions to file. That logistical nightmare is likely to make the pre-trial period a complicated mess, to say nothing of the trial itself. One defendant in particular is also going to be a little busy over the next six months, facing, as he is, three other trials in three other jurisdictions in the first half of next year. 

But, according to Trump, all the charges will be rendered meaningless on Monday, when he said he plans to release a self-described “Large, Complex, Detailed, but Irrefutable REPORT” on the 2020 election. “There will be a complete EXONERATION,” he promised. Forgive us if we’re not holding our breath. 

“The 2020 election in Georgia was not stolen,” Georgia’s GOP Gov. Brian Kemp said in response to Trump’s announcement. “For nearly three years now, anyone with evidence of fraud has failed to come forward—under oath—and prove anything in a court of law.” 

“The future of our country is at stake in 2024 and that must be our focus,” Kemp said.

Worth Your Time

• People certainly seem isolated and angry these days. In a piece for The Atlantic, David Brooks endeavors to understand why. “The most important story about why Americans have become sad and alienated and rude, I believe, is also the simplest: We inhabit a society in which people are no longer trained in how to treat others with kindness and consideration,” Brooks writes. He argues that our current crisis can’t be explained away by technology, sociology, demographics, or even the economy: The cause lies in a profound lack of moral education. “In a healthy society, a web of institutions—families, schools, religious groups, community organizations, and workplaces—helps form people into kind and responsible citizens, the sort of people who show up for one another,” he writes. “We live in a society that’s terrible at moral formation.”
• The debate over school choice programs has sparked tense policy fights in states across the country, most recently dividing Nevada’s state legislature. TMD readers will remember that Democratic Pennsylvania Gov. Josh Shapiro flip-flopped on a voucher program after bucking his party on the issue, and a state representative in Georgia recently left the party over it. Past studies have produced mixed conclusions about the effects of school choice on student achievement—varying widely by location and program design—but a new working paper from the National Bureau of Economic Research found that Los Angeles’ neighborhood-based assignment system had a sizable impact for students. University of Chicago business professor Christopher Campos and data scientist Caitlin Kearns looked at L.A.’s  Zones of Choice program, which creates school choice markets in about 30 to 40 percent of neighborhoods but leaves traditional attendance zone boundaries in place throughout the rest of the district. Campos and Kearns conclude that the program has led to gains in both student achievement and four-year college enrollment rates. “These findings are consistent with demand estimates that indicate parents place more weight on school effectiveness than on peer quality, suggesting that ZOC schools are incentivized to improve,” they write. “Using a measure of competition derived from applicant preferences, we show that treatment effects are largest for schools facing the greatest pressure to improve. Therefore, through various avenues, we find evidence that schools improved because of increased competition.”

Presented Without Comment

Politico: [Treasury Secretary] Janet Yellen Says She Accidentally Ate ‘Magic Mushrooms’ in China

Also Presented Without Comment

Washington Post: Elon Musk’s X is Throttling Traffic to Websites He Dislikes

Also Also Presented Without Comment

Boston Globe: N.H. Woman Sues Eataly Boston After She Allegedly Slipped on Piece of Prosciutto

Toeing the Company Line

• Does Fani Willis have the goods? How will the swirling Hunter Biden allegations affect his father’s re-election campaign? What’s up in Dispatch Politics world? Kevin was joined by Sarah, Jonah, Price, and Audrey to discuss all that and more on last night’s Dispatch Live (🔒). Members who missed the conversation can catch a rerun—either video or audio-only—by clicking here.
• In the newsletters: Harvest explores how the Biden administration’s new Ukraine funding request fits into the upcoming congressional budget showdown and Nick, in an instant classic, explains why (🔒) the most recent Trump indictment is his “favorite child” of the four.
• On the podcasts: We’ve got a podcast triple play today! Jonah is joined by Daniel Hannan for a conversation about defining republican virtue, Sarah talks to No Labels’ chief political strategist Ryan Clancy about the state of the two-party system, and Sarah and David break down all 98 pages of Fani Willis’ indictment of Donald Trump & Co. in Georgia.
• On the site: Jonah defends his take on small-dollar donors and Charlotte digs into the Biden administration’s Iran hostage deal.

Let Us Know

What do you think of Fani Willis’ decision to center her case around Georgia’s anti-racketeering law?