Georgia Courts Pushing Aside Potential Roadblocks To Trump August Indictment

Georgia Courts Pushing Aside Potential Roadblocks To Trump August Indictment

It looks very likely that Donald Trump will be indicted by a Fulton County, Georgia, Grand Jury on charges related to his conduct after he lost the Georgia general election in 2020.

The infamous “find votes” call appears to be part of it, but IMO if that’s all there is, it’s not enough because arguably it was a request to properly count all votes, not create fictitious votes.

The call was not “perfect” but it wasn’t criminal either. When WaPo released a highly and deceptively edited 4-minute version, it appeared that Trump might have been seeking to have Raffensberger do something illegal by “finding” votes for Trump. But after that media narrative was set, hours later the full hour-long audio and transcript was released which showed no illegality.

The call was pretty much a Trump stump speech railing on Raffensberger and other state officials for supposedly not doing their jobs. That job in Trump’s view in the call, was to prevent voter fraud and disqualify fraudulent votes, not to commit fraud. There was no substance that Trump has not said dozens of times in public, and if the substance of this call was done in a speech, no one would have noticed.

(Raffensberger vigorously pushed back on Trump’s claims of election fraud on the call, as did his aide in a press conference today.)

So there has to more to sustain an indictment. What that “more” is remains to be seen when the indictment is unsealed. A Special Grand jury gathered evidence, as has the current criminal Grand Jury.

Fulton County D.A. Fani Willis, who like Alvin Bragg, promised to investigate Trump, has promised action by September 1:

"The work is accomplished. We've been working for 2.5 years. We're ready to go."

— Fulton County DA Fani Willis reaffirmed she will announce charging decisions by September 1 in her investigation into Donald Trump/his allies in Georgia pic.twitter.com/1iM4d0rrpi

— The Recount (@therecount) July 31, 2023

It’s unclear what those charges would be, but there is speculation of some sort of state-version of federal RICO (Racketeer Influenced and Corrupt Organizations Act), which permits the indictment of the head of a criminal enterprise for the actions of the enterprise even if the head himself committed no crime. An “enterprise” could be a group of people acting together, even if not under a formal legal structure.

The federal RICO statute most famously was used against mob bosses who insulated themselves from directly participating in the crimes of the enterprise (the crime family). It also has been used against politicians, such as former Providence, Rhode Island, Mayor Buddy Cianci (RIP):

In the public corruption sphere, RICO was used to convict Providence, Rhode Island, Mayor Vincent “Buddy” Cianci…. [who] ran Providence like his own fiefdom and was hugely popular … Allegations of “pay-to-play” and other corruption were rife.

The federal government charged Cianci and his top assistants with dozens of counts of criminal activity relating to campaign contributions, payoffs, and other sundry matters. The feds had videotape of Cianci’s top assistant taking a cash bribe. But the feds didn’t have anything specific on Cianci. No wiretaps or video of Cianci taking, ordering, knowing about, or otherwise conducting criminal activity. One of the Counts in the indictment was a RICO conspiracy.

The RICO theory was that Providence City Hall (the Mayor’s Office, and various administrative departments under Cianci’s control) was a criminal “enterprise” controlled by Cianci. In this manner, Cianci could be held liable for the acts of those who reported to him even if there was no hard proof of Cianci’s involvement in specific crimes.

Cianci was found not guilty of 26 specific criminal charges. The only charge on which he was convicted was RICO conspiracy. Cianci challenged the verdict on the ground that the government had not proven an “enterprise,” but his appeals failed. Cianci ended up serving over five years in federal prison ….

Whereas federal RICO has a limited set of predicate acts (such as gambling, murder, kidnapping, extortion, arson, robbery, bribery) required to invoke the statute, the GA version apparently is broader:

According to state law experts, Trump’s actions — like phone calls pressuring Georgia’s secretary of state to “find” more votes — could fall under the broad legal statute barring the extortion of victims. “Among the things that are considered racketeering activity in the state of Georgia is knowingly and willfully making a false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of any department or agency of state government,” a Georgia State law professor told the Guardian. “If you do that, you’ve committed a racketeering activity. If you attempt to do that, if you solicit someone else to do it or you coerce someone else to do it — it’s all considered racketeering under Georgia law.”

So, the theory is, potentially, that Trump was the head of an enterprise committing crimes, in addition to whatever crime the prosecutors may allege he committed himself. If RICO is all they have on Trump, the GA indictment would be viewed like the Manhattan indictment – legal gymnastics designed to get Trump at any cost. (As I’ve said many times, the Florida federal indictment is legally straightforward, subject of course to proof.)

So far, the Georgia courts have rejected Trump’s attempts to head-off the indictment.

As previously reported, the Georgia Supreme Court unanimously dismissed Trump’s attempt to invoke ‘original jurisdiction’ to preempt the lower courts, something the GA Supreme Court has not done in any case in 40 years. The Court noted that there were two pending motions in the Superior Court that covered similar issues, one filed in March and another filed simultaneously with the ‘original jurisdiction’ filing. Both cases involve Trump’s claim that the Special Grand Jury was improper, none of the evidence gathered could be used in an indictment by the regular Grand Jury currently contemplating criminal charges, and Willis should be removed.

The March motion was just decided, and Trump’s motion was denied for lack of standing:

Having reviewed the pleadings, the Court now finds that neither Trump nor Latham enjoys standing to mount a challenge – at this pre-indictment phase of the proceedings — to the continued investigation into and potential prosecution of possible criminal interference in the 2020 general election in Georgia. The movants’ asserted “injuries” that would open the doors of the courthouse to their claims are either insufficient or else speculative and unrealized. They are insufficient because, while being the subject (or even target) of a highly publicized criminal investigation is likely an unwelcome and unpleasant experience, no court ever has held that that status alone provides a basis for the courts to interfere with or halt the investigation.3 Trump knew this, and now Latham does too….

There will be a time and a forum in which Trump and Latham can raise their concerns about the constitutionality of the special purpose grand jury statutes, about the performance of this particular Special Purpose Grand Jury (and the judge supervising it), and about the propriety of allowing the Fulton County District Attorney to remain involved with whatever criminal prosecution — if any — results from the work of this Special Purpose Grand Jury. That time is not now and that forum is not here….

The Judge also rejected the claim that Willis’ political partisanship required her removal:

… neither movant has pointed to any averments from the District Attorney or her team of lawyers expressing a belief that Trump or Latham is guilty or has committed this or that offense. Rather, the consistent — and persistent — theme has been the standard fare of “pursuing the evidence where it leads us,” “holding everyone accountable,” and “no one being above the law.”The drumbeat from the District Attorney has been neither partisan (in the political sense) nor personal, in marked and refreshing contrast to the stream of personal invective flowing from one of the movants.

Put differently, the District Attorney’s Office has been doing a fairly routine — and legally unobjectionable — job of public relations in a case that is anything but routine. None of what movants cite rises to the level of justifying disqualification and all of it, collectively, falls far short ….

In the second Superior Court action, the one the Supreme Court noted was filed simultaneously, Judge McBurney (who just issued the Order above) is named as a defendant. A hearing on Trump’s motion is scheduled for August 10:

A judge has set a hearing for Aug. 10 on a motion by Donald Trump’s attorneys to disqualify District Attorney Fani Willis from prosecuting possible criminal interference in the 2020 presidential election.

Legal observers consider Trump’s motion a long shot, but the hearing comes as Willis could be on the verge of asking a recently seated grand jury to hand up an indictments. All signs point to the former president being charged.

Senior Superior Court Judge Stephen Schuster, in an order signed Friday, also directed both sides to submit their legal briefs on the issue no later than Aug. 8.

Schuster, a former Cobb County judge, was assigned the case after all of Fulton’s judges were recused because the motion was filed not just against Willis, but also against fellow Fulton Superior Court Judge Robert McBurney….

Also Friday, Cathy Latham, the former chair of the Coffee County GOP and an alternate elector who cast her vote for Trump, joined Trump’s motion. And attorneys for former state GOP chair David Shafer, another alternate elector who has been notified he is a target of the investigation, made an entry of appearance in the case before Schuster.

I would be shocked if Judge Schuster granted Trump the pre-emptive relief he seeks.

The Georgia courts seem to be clearing any roadblocks to a Trump indictment.

If Trump is indicted in Georgia, particularly if based on a RICO theory, it would be another electoral gift. The March 2023 Manhattan indictment took a Republican primary that was closing between Trump and DeSantis, and blew it wide open in polling toward Trump. The Florida indictment solidified that rally-around effect, as will a Georgia indictment.

What the impact is in six months when voting starts in Iowa remains to be seen. But for now, overly aggressive Democrat prosecutors are the gift that keeps on giving to Trump’s efforts to secure the Republican nomination. The downside, of course, is possible conviction and incarceration that a federal pardon could not cure.

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