I’ve made the point repeatedly that both the D.C. and Georgia indictments of Donald Trump start from a premise that isn’t true – that an attempt to “overturn” an election in and of itself is criminal. The means by which an election is overturned may be criminal, but the end goal is not.
With regard to the D.C. indictment, I questioned Where is the crime?
The indictment may make out a persuasive case that Trump lied in the post-election period about election fraud, and disregarded the warnings of his most trusted and most loyal confidants that what he was saying was not true, but that doesn’t equate to a crime. The core of the alleged crime is disruption of the electoral count, but that took place because of the riot, and Trump has not been indicted (yet) for inciting the riot. What the indictment purports to prove may be a reason not to vote for Trump, but it’s far from clear it’s a reason to criminally charge him.
I raised similar questions with regard to the RICO and other charges against Trump in the Georgia state case, during an interview on NTD’s Capitol Report on August 15. The issue is that the allegedly illegal acts in the indictment (impersonating an official, attempting to gain improper access to a computer system) could have and should have been charged separately. But the RICO and conspiracy counts allege as a purpose overturning the election, but that’s not in itself illegal depending on how it’s done.
NTD has the write up, Georgia Trump Indictment Looks ‘Very Political,’ but Dismissal Unlikely
… “I think it’s an attempt by Georgia to do a shock and awe sort of attack on Donald Trump and his supporters,” William A. Jacobson, a Clinical Professor of Law and Director of the Securities Law Clinic at Cornell Law School, told NTD News’ “Capitol Report” on Tuesday….Mr. Jacobson said Ms. Willis’s latest indictment against President Trump is “throwing everything at him, and really replicating what the federal government is already doing in the District of Columbia.”Mr. Jacobson raised issues with a number of aspects of how Ms. Willis’s office handled the new indictment, such as plans to take and publicize the former Republican president’s arrest photo.“They’re gonna play this up. I think the prosecution wants, you know, a pound of flesh from Donald Trump,” Mr. Jacobson said. “They want the mug shot, they want him paraded in front of the cameras.” …“They didn’t do that in the Manhattan indictment. They haven’t done that in the federal indictments. So I think this all smells very political, from the way that prosecution is conducting itself,” Mr. Jacobson said of apparent plans to take arrest photos and televise the former president’s court appearance.Mr. Jacobson also raised issue with the timing of the indictment.“I think one of the big concerns that people have is that this is the weaponization of the prosecutorial function for political purposes,” he said. “They waited to bring these charges until we’re in an election year. And that’s the problem—these charges are based on conduct that took place almost three years ago. They could have brought this case a year ago, we would have had the trial, we would have had the result, and it wouldn’t have interfered with the Republican primaries in the general election.” ….Mr. Jacobson said he doesn’t believe Mr. Trump’s efforts to challenge the 2020 election results were criminal, but also expressed doubt that many of the charges can easily be dismissed before a trial.“I don’t agree with Donald Trump’s conduct after the election, but I also don’t think it was criminal,” Mr. Jacobson told NTD News.Mr. Jacobson added that Ms. Willis is within her rights to prosecute the former president under the Georgia RICO laws, but he believes she’s missing the specific elements she needs to prove that crime.“Georgia is entitled to bring charges based on its state RICO statute. I think it will be scrutinized by a judge. I’m not sure they’ve alleged the elements of it,” he said. “I don’t think this is going to go away. Pieces of it might. But I think this is a case that’s probably going to have to go to trial.”The Cornell Law School professor also expressed doubt that the U.S. Supreme Court will get involved in the case, but didn’t rule out the possibility entirely.“The Supreme Court doesn’t normally micromanage cases as they’re proceeding through trial,” he said. “I think you do have an issue here, which is that you have local prosecutors and the federal government bringing charges that are going to interfere with a federal election. I don’t know if that will move an appeals court or the justices to take action. I don’t think so, but this is a highly unusual circumstance. This has never happened before, that they are going to tie up the most likely nominee of a major political party in an election year.”
Andy McCarthy makes a simlar point in The Flaw In Trump’s Georgia Indictment (emphasis added):
… If prosecutors allege a large-scale conspiracy, various conspirators may play different roles. In a conspiracy to sell cocaine, for example, some people may handle importation; others handle sales or security, and still others, accounting and management of the cash proceeds. But what unites these role-players in a single conspiracy is the criminal objective — in our example, to sell cocaine. If there is no agreement about a crime, there is no conspiracy….
That is what’s so strange about DA Willis’s indictment. She alleges that the 19 people named in her indictment are guilty of conspiracy because they agreed to try to keep Donald Trump in power as president — specifically, to “change the outcome of the election in favor of Trump.” Maybe they shared such an aim, maybe their 19 minds met regarding that objective, but in and of itself, trying to reverse the result of an election is not a crime. You may have noticed that neither Al Gore nor Stacey Abrams was ever led away in handcuffs.
To be clear, it’s entirely possible that people can perform criminal acts in the pursuit of a lawful objective. If they do, they may be charged with those crimes — and if the crimes are serious, they should be charged. That, however, does not mean their overarching objective was a crime. And again, if you don’t have two or more people agreeing on an objective that is a crime, you don’t have a conspiracy.
Willis tries to get around this inconvenience in two ways, neither of which works.The first is a tautology: She conclusively asserts, on page 14 of the indictment, that this was a “conspiracy to unlawfully change the outcome of the election in favor of Trump.” That is, the lawful objective of changing the election outcome somehow becomes unlawful because she invokes the apparently talismanic word “unlawful.” But there is no crime of unlawfully trying to change an election outcome — not in Georgia law nor any other American law….Willis thus turns to her second artifice, the RICO conspiracy charge. RICO is unique in the criminal law because, instead of targeting crimes, it targets entities — associations of people, referred to as enterprises — that generate revenue through the commission of crimes….
The defendants indicted by Willis did not have an overarching agreement to commit a crime, and they were the antithesis of a RICO enterprise. If, as the DA alleges, they committed discrete crimes in the effort to reverse the election result — such as forgery, false statements, solicitation of others to commit felonies, or hacking into election systems — then they should be prosecuted for those crimes.
But an agreement to do something legal — to reverse the result of an election — is not a conspiracy.
It’s possible prosecutors in either the D.C. or Georgia cases could prove some specific action by Trump that was itself illegal (that’s not clear right now), but otherwise lawful actions towards the purpose of overturning an election do not become criminal. That’s called politics.
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