Indictment Watch: Georgia on My Mind

Georgia RICO ain't federal RICO.

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A grand jury out of Fulton County, Georgia has brought RICO charges against Donald Trump and 18 co-defendants. Sarah and David explain the 98-page indictment, how it holds up to the others, and Trump’s interesting defense strategy. Plus:

-David issues a very important correction

-Will Trump be able to pardon himself?

-Georgia RICO vs. federal RICO

-Will this case stay in Georgia?

-What if Trump wasn’t lying?

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Comments (91)
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  1. Jon Endean

    I have lots of thoughts, but I do have one question. I know that OLC's position has long been that the indictment and prosecution of a sitting president is unconstitutional. But what does that mean in practice? In the scenario of a Trump reelection, the drop-dead date for any prosecution would be 11:59 am on January 20, 2025. (In other words, I am assuming that until he's a "sitting president," Donald Trump doesn't have the presidential immunity that the OLC believes he would get as a sitting president. Is that correct? I suppose it could be earlier—such as when the electoral votes are counted on January 6, 2025, when the electors meet on December 17, 2024, or when the GSA Administrator issues his/her "ascertainment letter" a few days after November 5, 2024.) That gives prosecutors about 17 months (give or take a couple of days), which seems totally doable for at least one of the cases.

    But what does "indictment and prosecution" mean? On one end, it seems patently obvious that, say, Michigan wouldn't be able to bring additional charges on January 21, 2025. But on the other end, if Donald Trump is sitting in a Georgia state penitentiary on January 19, 2025, the immunity from indictment and prosecution doesn't spring him from jail. Is that, in your view, right?

    But suppose we have a multi-week trial that concludes on January 24, 2025—after inauguration. What happens then? Does the prosecution just have to stop on Inauguration Day? Similarly, suppose we have a multi-week trial that concludes on January 17, 2025, but the jury is still deliberating on January 20, 2025. What happens then?

    What if Trump is convicted at the end of 2024, but the sentencing hearing is scheduled for after January 20? If he's been duly convicted as a private citizen, can the sentencing be done after he's president, or is that barred? (And of course, could he be asked to report to prison after January 20, assuming all of the other trial matters have concluded?)

    I think this is most relevant for the Georgia matter, since the federal stuff can be fairly easily wrapped up by the Vice President issuing a pardon while serving as acting president, presumably under either section 3 or section 4 of the Twenty-Fifth Amendment. But while all of these scenarios are unlikely, I do think they're helpful about understanding the stakes of the various delay mechanisms that the Trump team is going for. They're trying to "run out the clock," so to speak, but is this "the prosecution is at its own 45-yard line with 3:30 to go" or "the prosecution is stuck at its own 5-yard line with 1:30 to go"?

    Incident to all of this is that the calendar becomes cleaner if the Manhattan case were to just go away. In a way, the Bragg indictment, which carries with it very little meaningful risk of imprisonment and a low chance of conviction, is, on net, actually helpful to Trump, because it's a chance to clog up the calendar to delay the other proceedings. If I'm Trump's lawyers, I am in no hurry to get that one dismissed, even if that's where I think this is going. He's not going to do this, but if Bragg is actually interested in seeing Trump get held accountable criminally, he should drop the charges. It's legally dubious, so a conviction is unlikely to stand up anyways. Indeed, one could plausibly argue that there are few people who are doing more to *help* Trump than Alvin Bragg, whose case is serving as interference for the more serious cases while also ensuring that Trump has an extra fundraising schtick (look at this partisan Manhattan DA who's going after me for dubious charges—donate here to fight the corrupt left!).

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    Charles

    I think Sarah makes a decent point about the importance of making sure you’re on rock solid ground for a case this politically explosive, but I would also push back in two areas.

    1. Prosecutors have a reputation of always overcharging defendants as a matter of strategy. I’m not sure it’s reasonable to expect anything different in that regard.

    2. I think it’s vitally important that we charge more than the open-and-shut documents case. In an era where so many norms have been eradicated, I would like this new norm to be established: when officials try to do what Trump et al did, they can expect to be indicted and tried.

    Even if Trump is found not guilty on all of the other charges that are more of a reach, I think it’s important that we set the precedent that you will face trial.

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    Dave T

    Guys ... you forgot to name the episode "Whatchu Talkin' Bout, Willis?"

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    PaulH

    Regarding vote fraud, using ballot harvesting to prevent the delivery of ballots for your opponent is certainly a much more efficient method than changing votes on sealed mail-in ballots, but it is not the only method. A number of states have introduced innovations such as mailing ballots to all registered voters and removing signature verification efforts. The result is that there are lots of ballots sloshing around that can be filled out, signed, and sent in with relatively little effort. I think it would still be difficult to systematically exploit this weakness to change a state election, but at the local level one or two people could definitely have an impact.

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  5. Fawnspady

    Listening to all the emergency podcasts on Trump indictments got my husband and I talking about Watergate and All the President’s Men (which we will have to watch again). What they did seems tame in comparison and the statements when their sentences were reduced are fascinating: “ Mr. Ehrlichman said in the new tapes that “an exaggerated sense of my obligation to do as I was bidden” had caused him to commit the crimes of which he was, convicted. “In effect, I abdicated my moral judgment and turned it over to someone else,” he said.”

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    Gileslauren

    As a Georgian, I can say that there is a sense here - even amongst many Republicans - of particularized wrongdoing against Georgia. Kemp is very popular. Raiffensberger is well-regarded except among serious MAGA types. There people who are affronted at what they feel was Trump going after our state and impugning our elections. Frankly, it’s the same reaction many had to Biden’s “Jim Crow 2” speech.

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      Kevin M. James

      I've been voting here for over 20 years now, and election after election, the process in this state has just kept getting better. (Fulton County may even have been a smidge less hopeless last time round.) Which made the tsunami of protest and paranoia and plain old bonkersness all the more puzzling...and irksome.

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  7. RaoD

    I think ultimately the Jan 6 indictment will be the most impactful one — though it may not be the most robust one. While MAL documents case may have best evidence backing it, it’s unlikely to reach trial before 2024 elections. Also DC judge impresses me as being a no-nonsense judge that perhaps can keep things moving forward. But then again I’m not an attorney.

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  8. Chipwatkins

    About Judge Scott McAfee, the Fulton County judge presiding over the case. https://www.wsj.com/us-news/law/scott-mcafee-has-been-a-judge-six-months-he-is-now-assigned-trumps-georgia-case-c9beac23?st=uqv0k32zv3j2rei&reflink=desktopwebshare_permalink

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      Bill Dyer (aka Beldar)

      He looks from his record to be, if not bullet-proof, at least well Kevlar'd against accusations of bias, and to be very well versed in both federal and state criminal law and procedure.

      I wonder if he's hoping the removal to federal court will stick.

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    Bill Dyer (aka Beldar)

    I respectfully but firmly disagree with you, Ms. Isgur, on the seriousness of the removal proceeding and the likelihood that the GA case will be remanded.

    To begin with, this removal has already happened. It is a fait accompli: Link: https://www.beldar.org/2023/GA/2023-08-16_Def_Meadows_Notice_of_Removal.pdf

    The question now is whether the Fulton County DA will choose to file a motion to remand to state court, and if so, whether it will be granted.

    I DID know that there was such a thing as federal-officer removal for state-court criminal cases, but I didn't know (or remember, if I ever knew) that Congress had written special rules for procedures to follow in 2011, now codified at 28 U.S.C. § 1455. Link: https://www.govinfo.gov/content/pkg/STATUTE-125/pdf/STATUTE-125-Pg758.pdf#page=4 and link: https://www.law.cornell.edu/uscode/text/28/1455. Like Ms. Isgur, most of the times I'd seen federal official removal was in civil cases involving government property or contractors.

    As I know you both know, the reason this is called a "notice" instead of a "motion" is because it's self-executing and requires absolutely no judicial permission or even involvement. All defendants do indeed go up if one alleged federal officer (or someone "acting under" one) removes, whether they consent to the removal or not — which differs from a lot of other sorts of removals (e.g., civil cases for diversity of citizenship, which is probably what we're all most familiar with). See, e.g., Akin v. Ashland Chem. Co., 156 F.3d 1030 (10th Cir. 1998). Link: https://scholar.google.com/scholar_case?case=14937677239245682991

    And also unlike the removal of civil suits, if a federal court doesn't make a summary remand based on the face of the pleadings & attachments upon the removal of a state-court criminal case, then the federal judge "shall order an evidentiary hearing to be held promptly," and if the federal court "determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further," per 28 U.S.C. § 1455(b)(5).

    Something else I didn't know until today, when a hint from another commenter, who'd been listening to another podcast that included a Georgia judge or lawyer, pointed out: Unlike a civil removal, which shuts down everything in the state court, the criminal removal permits proceedings in the state court to advance despite the removal UP TO, but not including, entry of a judgment of conviction, per 28 U.S.C. § 1455(b)(3). Link: https://www.law.cornell.edu/uscode/text/28/1455

    With due respect, but contra Ms. Isgur's admittedly offhand suggestion in this pod, the Jeffrey Clark case is NOT useful to us in predicting what will happen to the Meadows removal of the GA case: That wasn't a state-court criminal prosecution, but rather, a disciplinary proceeding before the D.C. Board on Professional Responsibility, and thus failed to match 28 U.S.C. § 1442(a) prescription for removable sorts of cases. It was an easy remand, IMHO. Link: https://scholar.google.com/scholar_case?case=16989344871832942118&

    The much, much more apt precedent is U.S. District Judge Alvin K. Hellerstein’s opinion from July 19, 2023, granting the State of New York's motion to remand the criminal case brought in New York State courts against Trump: https://scholar.google.com/scholar_case?case=649380991942829882

    When you run through the factors he applied in deciding that no, porn-star payoffs aren't POTUS-work and Trump had no colorable federal defenses against Bragg's case, I think you're going to start re-thinking your assumptions. I shared them! But upon reading that opinion closely, I certainly re-thought my own. I now think this removal will stick.

    Note that just as Trump's appealing that SDNY remand order to the Second Circuit, Clark is appealing the DC District Court's remand order to the D.C. Circuit — for while regular remand orders aren't appealable or reviewable as of right, appeals from remands of removals based on purported federal officer jurisdiction ARE appealable, per 28 U.S.C. § 1447. Link: https://www.law.cornell.edu/uscode/text/28/1447

    Please return to this topic soon, in print and on the pod. The national media are getting this very wrong, starting with whether Meadows needed, or Trump would need, any judge's approval to accomplish the removal.

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  10. Halvor

    Suppose that in each case one or two MAGA loyalists sneak through the screenings and are seated as jurors. They get sworn in yet harbor a sense of righteousness about the sum of MAGA grievances and they are aware of the unspoken power of nullification. Which case, then, is likely to give MAGA jurors the most permission or make them feel least inhibited?

    Sarah says the documents case is the strongest, but those charges have the least to do with morality and the most to do with bureaucratic disputes over possession. The crime is the fight over a calendar offense. What was once perfectly ok turned into a weapon in the hands of political enemies. If I were a Trump believer, I’d be tempted and maybe even proud to vote not guilty. The Jan 6 cases, in contrast, implicate false testimony, betrayal, and seizure of power — a moral order which average people feel reluctant to overthrow on their own volition. The risk of nullification therefore makes the documents case the weaker case.

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      Bill Dyer (aka Beldar)

      I respectfully disagree.

      The SDFL Mar-a-Lago documents case is one in which law and order jurors, even Trump supporters, can cheerfully agree that Trump retained classified documents to which he was not entitled, and obstructed justice by hiding documents with classified markings, while they go out the next day to vote for him because they think he was a great POTUS.

      If there's a case which is likely to be vulnerable to juror nullification, it's one of the broad cases in which they're being asked to consider an entire election and the efforts made to overturn it. To win the DC or GA cases, the jurors are going to have to be thoroughly convinced that Donald Trump is, and at least since the 2020 election has been, an incorrigible fraud and liar and criminal.

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      1. Halvor

        Thanks for your strong reply. I accept your opinion that I've underestimated the challenge of prosecuting a case that's long, requires many witnesses and intricate jury instructions, with the defense raising a hurricane of defenses at every step and offering cross-pressured jurors many exits along the way. Ordinary people master office politics, the social dynamics of a parish church, the play-by-play strategies of an NFL season, or the dangling narratives of an HBO series. But even if they have the ability to master the prosecution's theory of a case, they may not be able to handle their own subtle motivations.

        You've seen the practice of law, so I take your point.

        I've assumed that competent jurors will, with effort, realize that Trump is guilty beyond a reasonable doubt, and will only balk at a guilty verdict out of a determination to nullify. I still think a MAGA juror will find it easiest to consciously nullify the documents case, but concede that I can't assesses the likelihood that a complicated case will make it impossible for a juror to overcome their sincere, reasonable doubts.

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          Bill Dyer (aka Beldar)

          Those who give me the slightest encouragement are typically rewarded with/have inflicted upon them a link to one of my old blog posts with a war story from the courtrooms. Here's one I wrote in 2005 about a very simple jury selection I did in a very ordinary case — mostly to illustrate that it's certainly not a science, and maybe not even an art, but some sort of cross between gross stereotyping that would be wildly offensive in any other context and some sort of shamanistic ceremonial ritual. We're all guessing. I have the benefit of four-plus decades of jury trial experience — and ultimately, I'm just making a slightly better-informed guess. You'll see how that works out if you follow the link (sorry to be so click-baitey):

          Link: https://beldar.blogs.com/beldarblog/2005/06/a_critique_of_j.html

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          1. Halvor

            Very enjoyable post, Beldar. I've been on a few juries and really like lawyers (corporate sales reps are great, too). To avoid getting picked again, I'll scowl at them! There are lawyers in my family, and they are our buddhas and life coaches. I was a bit sorry that my daughter became a GI doc, like it was the result of something missing in her nurture or personality (kidding, a little).

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          Bill Dyer (aka Beldar)

          Well stated. Thanks for the exchange, Halvor!

          (Wait — are you saying you actually know WHY Daenerys Targaryen went berserk on dragon-back and fried the innocents of King's Landing she'd come to rescue? Damn! Expect David French to be in touch.)

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          1. Halvor

            Ha! You got me again, lol

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