Indict Trump? – Manhattan’s Withdrawal Puts Spotlight On Georgia; Fulton County DA Most Likely to Indict and Even Convict Former President
Donald Trump’s Criminal Probe
WASHINGTON D.C. (April 30, 2022) – A six-month criminal probe of Donald Trump by Manhattan District Attorney Alvin Bragg, for crimes related to manipulating the value of property assets to secure tax advantages or better loan rates, is expiring with no charges against the former president, notes public interest law professor John Banzhaf.
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This development both disappoints and surprises many since the probe was originally launched by Bragg's predecessor, Cyrus R. Vance Jr., who was convinced that there was a criminal case against Trump.
It also greatly increases the importance of a special grand jury just convened in Fulton County which is amassing evidence that Trump's telephone call, seeking to pressure Secretary of State Brad Raffensperger and others to change Georgia's presidential vote tallies, violated several criminal statutes, including RICO, says Banzhaf, who filed the criminal complaint against Trump which triggered the investigation.
Banzhaf's complaint charged the former president with violating several criminal statutes, including:
- GA Code § 21-2-603 - Conspiracy to Commit Election Fraud
- GA Code § 21-2-604 - Criminal Solicitation to Commit Election Fraud
- GA Code § 21-2-597 - Intentional Interference With Performance of Election Duties
An Indictment
The law professor believes that the investigation by Fulton County DA Fani Willis is more likely to return an indictment against Trump than the other major investigation by the Department of Justice which is investigating whether it can and should indict him for his role in allegedly inciting a riot on January 6th. Here's why.
First, he says, the evidence in Georgia is clear and uncomplicated, unlike the words of Trump's January speech which many see as ambiguous, and where prosecutors might have to argue from possible inferences.
In the Georgia case the language is very precise in its demands, the tone on the audio recording shows that Trump was not joking or speaking in generalities, others who listened to the call undoubtedly made notes and passed some of them to Trump, and there is ample supplemental evidence of Trump's criminal intent to affect the election results.
The fact that Trump, in a position to direct the Department of Justice, specifically mentioned possible criminal penalties if his wishes were not granted, and had others in his camp place similar calls, provides overwhelming evidence of his criminal intent, concludes Banzhaf, who notes that many other criminal law experts, including several very familiar with Georgia law, have reached the same conclusion.
Second, an indictment and trial in Georgia would not raise suspicion - and create very bad "optics" - of an incoming president seeking political retribution, and protection from competition in future elections, by trying to throw his opposition in prison.
Incoming presidents jailing their predecessors is what we and others around the world associate with tin-horn dictators in third-world countries with corrupt governments, not the U.S., Banzhaf argues.
Here it's even worse, because polls indicate that Trump would clearly be the strongest opponent of Joe Biden or of any other Democrat in the 2024 presidential race. So indicting him, much less putting him behind bars during this election, would be seen by many as a politically motivated prosecution.
Also, for many, it would seem unfair to invoke the fully resources of the United States government against one person, even a rich and powerful one.
A prosecution by a county DA would avoid all of these problems and perceptions, notes Banzhaf, so it might even have a greater chance of success, and of avoiding juror nullification at a trial.
Third, there is no free speech problem, as there would be in a criminal prosecution based upon Trump's speech at the rally.
Under the Supreme Court's Brandenburg ruling, the government may criminalize speech only if it is “directed to inciting or producing IMMINENT lawless action and is LIKELY to incite or produce such action” - in other words, it must create a clear and present danger. [emphasis added]
But since considerable time elapsed between Trump's speech and the lawless action - enough time, for example, for authorities to take preventive steps - it's not clear that the lawless action was "imminent" in the sense of a crowd being urged to "hang him now."
More importantly, can it be said - and proven beyond a reasonable doubt - that the statements were "likely" to provoke lawless action?
For example, at the time of the speeches, why didn't various public and law enforcement officials issue clear warnings about possible lawlessness if his words were "likely to incite or produce violence"? If they didn't, this suggests that professionals may not have believed that lawless action was "likely" - not just possible or conceivable. In this regard, hindsight is questionable, suspect, and not very persuasive.
RICO
Finally, Willis plans to use RICO - the Racketeer Influenced and Corrupt Organizations Act - in any prosecution of Trump.
Banzhaf, who is familiar with the federal RICO statute since he produced the memo which led to the federal government's successful RICO prosecution against the major tobacco companies, points out that the Georgia RICO statute is even more powerful and far reaching than the federal one.
Among other things, it defines racketeering more broadly than the federal law does, takes less to prove a pattern of racketeering activity, and does not always require the existence of an enterprise - especially an illegal or criminal enterprise - to constitute racketeering. Indeed, Willis has used RICO to prosecute a teacher-cheating case at a school.
Also, notes Banzhaf, although RICO requires at least two independent illegal racketeering activities - "predicate acts" - to prove a pattern of corruption by Trump and his alleged co-conspirators, making false statements such as Trump and some of his allies are alleged to have made would more than satisfy Georgia's RICO law.
Racketeering, which is a felony in Georgia, can carry penalties of up to 20 years in prison, a hefty fine, and disgorgements of ill-gotten gains. Most felons in Georgia convicted of racketeering offenses do serve time in prison.
So, with Manhattan now out of the running, everyone who believes that Trump must be prosecuted should keep a very sharp eye on Fani Willis in Georgia, counsels the law professor.
