Raffensperger “Lawyering Up” in Trump Criminal Probe; Apparent Conflicts of Interest in Investigation by Georgia DA
Raffensperger Lawyering Up
WASHINGTON, D.C. (April 30, 2021) - In what a person within the office of Fulton County District Attorney Fani Willis termed "lawyering up," Gov. Brian Kemp appointed a special counsel to represent Georgia Secretary of State Brad Raffensperger when Attorney General Chris Carr, who would typically represent the state in this criminal investigation of former president Donald Trump, refused to do so.
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This move follows reports of conflicts - more specifically, problems in obtaining documents and other cooperation - between the DA and the Secretary of State, says public interest law professor John Banzhaf, whose formal complaint triggered this criminal investigation of Trump.
The special counsel, Jack Sharman, who specializes in white-collar criminal defense, has served as a special counsel to the U.S. House Financial Services Committee during the Whitewater investigation involving President Bill Clinton. He also served as a special counsel in the Alabama House during the impeachment probe of then-Gov. Robert Bentley.
As previously reported, the criminal investigation of Trump and U.S. Senator Lindsey Graham is heating up, with Willis issuing an open records demand for all audio recordings and other communications between Trump and the office of Brad Raffensperger.
This comes as her criminal investigators have reportedly grown frustrated with the alleged lack of full cooperation by Raffensperger's office; a refusal to cooperate which might even rise to the level of a criminal obstruction of justice sufficient to require the issuance of subpoenas to force some of the Secretary's staff members to provide testimony under oath and to share other important information, says Banzhaf.
Issuing Formal Subpoenas
In any event, it appears that her office will begin issuing formal subpoenas to many involved in the matter early in May.
After receiving Banzhaf's complaint, Willis announced an investigation which includes "but is not limited to, potential violations of Georgia election law prohibiting the solicitation of election fraud, the making of false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office, and any involvement in violence of threats related to the election’s administration.”
Willis' decision to investigate whether the former president might be guilty of a criminal conspiracy came as a surprise to many, but not to those familiar with her record.
Indeed, she recently hired one of the country's leading experts on state racketeering cases to help conduct the investigation; a further signal that the DA in hoping to bring a RICO case against him, says Banzhaf.
Although Willis is already very familiar with Georgia's far reaching RICO statute as a result of winning an unusual RICO case against some teachers who had cheated, she has nevertheless engaged the lawyer who literally wrote the book on state RICO prosecutions - “RICO State by State: A Guide to Litigation Under the State Racketeering Statutes” - to help her carry out a wide ranging investigation which she had earlier said would include possible racketeering activity.
The Federal RICO Statute
Prof. 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. For example, the "enterprise" used in the RICO teacher-cheating case was 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 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, Banzhaf notes.
This RICO probe is probably the most serious legal threat Trump faces now that he no longer enjoys any protection as president, notes Banzhaf.
It is a very far ranging statute which permits wide disclosure and has a very heavy penalty.
It is also in the hands of a prosecutor who is a Democrat in a heavily Democratic county. Therefore, most members of a grand jury, and of any criminal trial juries in this county, are likely to be very unfriendly to Trump, Banzhaf suggests.