Trump’s Most Dangerous Indictment Triggered by Activist Professor; No President Can Pardon, and GA’s RICO Can Engulf Vast Enterprise
Trump’s Most Dangerous Indictment
WASHINGTON, D.C. (August 14, 2023) – Former president Donald Trump has been indicted by DA Fani Willis in Fulton County, Georgia, this evening in a multi-count indictment [Case 23SC188945] charging many named defendants, and including a criminal count under Georgia’s very powerful RICO [Racketeering Influenced Corrupt Organizations] statute against Trump.
Now Trump faces the greatest danger of all of his indictments, says the public interest law professor whose formal legal complaint first triggered the criminal investigation in Georgia. See:
- Raffensperger’s office indicated that a complaint from George Washington University Law Professor John Banzhaf III had prompted the “fact finding and administrative” probe
- See also Law Professor’s Complaint Leads to Investigation Into Trump’s ‘Find 11,800 Votes’ Call
This state indictment presents more real danger to Trump – legally, politically, and otherwise – than the two prior federal indictments for at least five reasons, says public interest law professor John Banzhaf.
- Neither Trump himself, nor any other Republican (or even Democrat) who is elected president, can pardon him, nor promise pardons to persuade potential witnesses not to cooperate or testify
- The indictment’s inclusion of Georgia’s extra powerful RICO statute will permit Willis to introduce into evidence many witnesses and documents which otherwise could not be presented
- Because televising of the trial is permitted in Georgia without exceptions, more people will become interested, and will see and hear day-by-day and directly all that Trump has done
- The large number of those facing unpardonable major felony charges, and career-ruining embarrassment from a televised trial, makes it likely that some will “flip” and testify against Trump
- Georgia’s RICO statute mandates (a judge has no discretion) a minimum prison sentence of 5 years, and a pardon can’t come before serving at least 1/3 of this sentence
Pardon
Most legal experts believe that Trump could pardon himself as well as his cronies if he is elected, and there is a move afoot to persuade other Republican candidates to pledge to do likewise if elected. Trump or others who might be elected president could also shut down any pending federal investigations and/or prosecutions once installed in office.
Even an incoming Democratic president might be moved to pardon Trump for the sake of harmony, and of healing major divisions among voters. As a model, he could cite President Ford’s pardon of Nixon after his resignation as President which was issued to help heal the country, and because of the undesirable optics of imprisoning a popular former president, says Banzhaf.
RICO Statute
Georgia RICO statute is even more powerful and far-reaching than the federal one, notes 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.
Among other things, it defines “racketeering” more broadly than the federal law, takes less to prove a pattern of racketeering activity, lists making false statements as a potential racketeering crime (“predicate act”), and does not always require the existence of an traditional criminal “enterprise” to constitute racketeering. For example, the “enterprise” Willis successfully used in her well known RICO teacher-cheating prosecution was a school.
Georgia’s RICO would allow the DA to bring before the jury many different defendants who may have contributed to the overall enterprise, at least tangentially and even in different locations (e.g., in rural Coffee County, GA, and perhaps even in other states), but who could not be tried in a conventional case. Bringing them all together gives the jury a better overall picture of what Trump was trying to accomplish, says Banzhaf, and makes convictions more likely,
As Willis, who has won several RICO cases once explained, “RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”
The law professor notes, for example, that Willis investigated efforts by Trump and his associates to obtain access to voting equipment in another county about 200 miles from Fulton County, and that her office has been in touch with special prosecutor Jack Smith about his investigations of alleged wrongdoing in other locations.
Long complicated RICO trials may also wear down some defendants and deplete their financial resources; consequences making it much more likely that they will flip and testify truthfully against Trump. Defense attorneys also worry that RICO can allow their clients to be tarred by association.
Televising Criminal Trials
Criminal trials of the two cases brought by special counsel Jack Smith will not be televised since cameras are not permitted in federal courtrooms. The rules in New York – where the weakest of all current indictments will be tried – do permit televising court proceedings, but with various limitations. In contrast, Florida permits televising trials with no exceptions.
As the RYDNA Guide explains:
“coverage is allowed without prior approval from the Court . . . four television cameras will be permitted in the courtroom at any time.. . . [In addition], members of the media can submit requests, at least 24 hours before the proceeding, to record a court proceeding.”
So it is likely that voters who may have had only a slight interest in the other Trump indictments, especially if they obtain most of their news from sources which provide only limited coverage, will become interested because of the many day-to-day broadcasts of the entire trial, or at least of major excerpts.
Moreover, once they become interested, they will see and hear for themselves the voluminous and very damning evidence against Trump, rather than the limited (and perhaps sometimes sanitized and minimized) information they may get from news broadcasts of trials which are not broadcast.
This is likely to be much more damaging to the reputations of Trump and of many of his associates than brief news reports of the federal trials.
Flipping
The more people close to Trump come face-to-face with the very real prospect of spending many years (perhaps even the rest of their lives) in prison, and the emotional as well as financial burdens of being a defendant in a long and complex criminal trial, the more likely it becomes that one or more will agree to “flip” and provide first-hand direct evidence (testimony and/or documents) against the former president.
Since proving that Trump knew about various activities being carried out to help overturn the election, and the intent or scienter required to be proven to convict him, this substantially greater probability of monumental legal costs and years in prison is more likely to flip even the most loyal associates into providing highly damaging testimony of Trump’s guilty knowledge and guilty state of mind than the federal prosecutions, argues Banzhaf.
Minimum Prison Sentence
There is a mandatory minimum prison sentence for anyone convicted under Georgia’s state RICO law of five years, a harsh consequence which does not appear to apply to other indictments. Unlike most states where a governor has the discretion to issue a pardon, in Georgia all parole and clemency decisions go before a state panel called the State Board of Pardons and Paroles.
Further, a pardon can’t even be applied for until the felon has served at least one third of his sentence, and most applicants aren’t granted parole when they first become eligible.
All this means that Trump faces very serious and unavoidable consequences if he is found guilty in Georgia; consequences which even a sympathetic Republican governor could not do much about, suggests Banzhaf.
It also puts great pressure on his co-defendants to cooperate with Willis, and provide crucial testimony against Trump to avoid spending (in many cases) their golden years in a penitentiary, and perhaps even dying there, says Banzhaf.
RICO can also lead to a forfeiture of ill-gotten gains (assets); an additional worry for someone in Trump’s position, as well as probably for other co-defendants also.
Legal experts also note that seeking to obtain pre-trial review by an appellate court of important constitutional and other preliminary challenges to the charges is also substantially more difficult, and less likely to be successful, if RICO is involved.
Additionally
The fact that the county in which the Georgia case will be tried is overwhelmingly Democratic, plus that a trial by a county DA will not present to jurors or others the same disturbing optics of a major presidential candidate and former president being prosecuted by his likely rival with the vast resources of the federal government (including the entire FBI), makes a conviction of the former president much more likely in Georgia, predicts Banzhaf.
