Trump's Present and Future possible indictments

Part 1


By now you know that Trump has been indicted, for the fourth time, in Fulton County Georgia. His co-defendants include people like Rudy Giuliani and other lawyers like John Eastman, Sidney Powell (the “kraken”), attorney-general-wannabe Jeff Clark, and more, as well as lesser known figures in Georgia and others involved in the campaign. You can find the full indictment here. It’s a long and somewhat difficult slog, but rewarding.

Possibly the most important point for the future of democracy: In Georgia state proceedings, there are cameras. Not just for trial but every step of the way. That was literally true as we were all able to watch the indictment get hand-walked to the judge. This is what it means to have open courtrooms.

The impact when people can see it for themselves can’t be overstated. That’s especially true when it comes to hearing the evidence and the legal arguments the lawyers make. There is no excuse for not having cameras in federal courts. But I’m glad we have them in Georgia. It’s far more difficult for right wing media to call the prosecution a witch hunt when people can see it for themselves. Just like public opinion shifted in some unlikely corners when the public was able to view the trial and hear the evidence against the police officers who murdered George Floyd for themselves, I expect the same could happen hear.



There are a lot of crimes charged in the indictment, but they all center on five basic areas of misconduct:

  • False statements around voting fraud made by Trump cronies, including Giuliani, to Georgia officials,
  • The Sidney Powell led breach of voting machines in Coffee County,
  • Trump’s calls to state officials, including Secretary of State Brad Raffensperger, begging them to overturn the election,
  • the attacks on election workers like Ruby Freeman and Shaye Moss, and
  • the creation of slates of alternate electors in an attempt to steal the election.
All 19 of the defendants are charged with the RICO violation in Count I of the indictment. Forty additional counts follow, one or more defendants in each. Trump is charged in 12 counts in addition to RICO:

  • 3 counts of soliciting a state official to violate their oath of office
  • 2 counts of conspiracy to commit forgery
  • 2 counts of conspiracy to make false statements
  • 2 counts of making false statements
  • 1 count of conspiracy to impersonate a public officer
  • 1 count of conspiracy to file false documents
  • 1 count of filing false documents
In some cases, both a conspiracy to do “the thing” and doing “the thing” itself are charged. In other words, being charged with a conspiracy to forge documents, as well as the forgery itself. That is because conspiracy is a crime that is committed once a defendant makes an agreement to do the thing and one member of the conspiracy takes a step towards doing it (an “overt act”). The incomplete or inchoate crime of conspiracy is a separate crime from the doing the act itself and can be charged separately. The key to understanding this is remembering that in the case of the conspiracy, it’s the agreement to commit the crime that violates the law.



 
Part 2

In some cases, both a conspiracy to do “the thing” and doing “the thing” itself are charged. In other words, being charged with a conspiracy to forge documents, as well as the forgery itself. That is because conspiracy is a crime that is committed once a defendant makes an agreement to do the thing and one member of the conspiracy takes a step towards doing it (an “overt act”). The incomplete or inchoate crime of conspiracy is a separate crime from the doing the act itself and can be charged separately. The key to understanding this is remembering that in the case of the conspiracy, it’s the agreement to commit the crime that violates the law.

Today, Fulton County DA Fani Willis sent the judge a proposed order that, if he adopts it, calls for the defendants to be arraigned during the week of September 5. Pursuant to Georgia law, they receive notice of the time for arraignment at least five days in advance. It’s easy to anticipate the Trump camp being outraged by the short timeline and demanding more time. But that’s how Georgia law works. This will be the first opportunity to see how Judge Scott McAfee will react to the inevitable deluge of delay tactics that are about to come his way. Willis has also given defendants until Friday, August 25 at noon to voluntarily surrender for processing. If they do not, they will be arrested.

When the defendants surrender, they will show up at the Fulton County jail on Rice Street, a facility a friend recently said smelled like “bologna and body odor.” That’s a pretty gentle characterization of the facility, which is currently being investigated by DOJ to determine whether prisoners’ rights are being systematically violated. When the investigation was announced, the U.S. Attorney in Atlanta, Ryan K. Buchanan said, “The recent allegations of filthy housing teeming with insects, rampant violence resulting in death and injuries, and officers using excessive force are cause for grave concern and warrant a thorough investigation. This investigation is part of our ongoing efforts to ensure that citizens are safe, and their constitutional rights protected, even while they are in custody.” Although it’s unlikely that Trump or his co-defendants will remain in custody for longer than it takes to process them, it’s ironic that the former president, who was notoriously unconcernedwith how police treated criminal defendants, will find himself in a facility whose conditions are so deficient that they warrant federal scrutiny.

The reported conditions in the Rice Street are horrific. As Merrick Garland said when the investigation was announced, “People in prisons and jails are entitled to basic protections of their civil rights.” That does not appear to be the case in Fulton County’s jail. DOJ’s work under the Civil Rights of Institutionalized Persons Act (CRIPA) is some of its most important. No minimizing of the seriousness of the situation and the violation of the rights of people in custody there from me. But it’s difficult not to compare Rice Street to the earlier settings Trump has been processed and arraigned in. They were practically antiseptic by comparison. This will be an opportunity for him to face the reality of prison life for far too many people held in custody. Some of his co-defendants may see the surroundings and seriously consider whether they want to risk spending years in a Georgia prison.

Could Trump be held in jail pending trial? My former DOJ and current MSNBC colleague Andrew Weissman has argued Georgia law permits a judge to deny Trump bail unless he can prove he doesn’t pose a risk of intimidating witnesses or obstructing justice. Andrew points to a recent social media post where Trump encouraged a Georgia witness to avoid grand jury testimony. Witness tampering extends to any effort to prevent, delay, or hinder a witness from testifying. We don’t know yet if Fani Willis will seek detention, but Andrew raises an interesting point. Trump’s lawyers will surely claim his posts are just jokes, or locker room talk, or whatever their excuse du jour is. But the question will be how the judge views them. Are they actual intimidation or just a guy with a big megaphone strapped to his mouth blowing off steam? Trump avoids accountability for this sort of conduct, as well as for the threats he makes against people, because instead of doing it face to face, he uses social media. If he had told the witness face to face that he shouldn’t testify as opposed to “truthing” it, there would have been little question prosecutors would take action if they learned of it. We’ll likely learn at arraignment how Judge McAfee intends to handle this behavior.

What kind of time would the former president do in prison if convicted? The RICO charge carries the most serious penalties, the statute says from five to 20 years in custody. Although many people interpreted this as a mandatory minimum sentence of five years, and that five years was a floor the judge couldn’t go below if Trump was convicted, that is not the case. While many Georgia felony statutes are written to require a sentence of “at least X years,” Georgia crimes don’t carry a mandatory minimum sentence unless the legislature explicitly says the sentence can’t be probated when they write the law. They do this when they mean to; for instance, a Georgia law involving street gangs provides a judge may not substitute probation for the time in custody the statute calls for. But in the case of RICO, a Georgia law, O.C.G.A. § 17-10-1, allows for the sentence to be probated at the judge’s discretion. However, in an earlier RICO case involving educators and a grade cheating scandal Willis prosecuted, the judge issued sentences that were longer than five years for some of the most culpable defendants. That case should serve as a stern warning to Trump about what could lie ahead.



 
Part 3

So, the perfect phone call it wasn’t. Trump’s call to Georgia Secretary of State Brad Raffensperger begging for 11,780 votes launched an investigation that resulted in this sweeping prosecution. We all knew from the moment we heard the tape of the call that it was a criminal act, an effort to steal an election Trump had lost. Now that call is at the heart of a RICO prosecution that charges Trump and his co-defendants with using false claims of voter fraud to commit election fraud.

The first motion from a defendant came from Mark Meadows, who wants to remove the prosecution from state to federal court. Long time readers of Civil Discourse will remember we discussed this procedure back in February. Even experienced lawyers are often surprised to learn it’s possible for a defendant to have an indictment brought in state court transferred to federal court.

The law provides a mechanism for federal officials to avoid criminal prosecution in state court, but this is a novel situation, to say the least, for applying that procedure. It is not the more typical case, where a federal law enforcement agent wants to avoid being prosecuted in state court, because he has defenses that could be presented in federal court that cannot be used in a state prosecution. Meadows wants a pass because even though he was involved in perpetuating what he knew to be the myth of voter fraud, he was doing mundane “official acts” that a chief of staff does for a president. While his argument is not entirely frivolous and the courts will have to consider both sides carefully, it feels disingenuous. The defendants committed serious state crimes related to an election that was administered by Georgia officials, and it would be an injustice to remove this case, especially because the prosecution doesn’t interfere with the operation of the federal government, a primary reason we have this obscure rule in the first place. The request to remove the case is more about delay and an effort to get a conservative jury pool than it is about protecting federal officials from intrusive state prosecutions. A federal judge has set a hearing for August 28, not quite two weeks away.

You may want to refresh your recollection of the law by reviewing the earlier piece on it here, and we’ll assess the arguments as soon as we see Willis’s response to Meadow’s petition—it’s due next Wednesday.

The defendants are all presumed innocent until proven guilty. That’s a critical principle of our justice system, one that separates us from banana republics and countries were people can be locked up because they’ve run afoul of powerful people. But this is Fani Willis’s 11th RICO case. She does not strike me as someone who would indict a case she does not believe she can win; she has plenty of other work on her plate.




 
When the Cato Institute, vanguard of the “Libertarian” movement, created in 1977 by Charles Koch and others, decides to dump on trump, with some choice caustic words, you know trump is done.

This article written by Clark Neily, senior vice president for legal studies at the Cato Institute, is quite a read. I will paste some snippets here, you can read the full article here — www.cato.org/…

I believe yesterday’s indictment in Georgia sealed Trump’s fate.

If the case goes to trial, which seems likely, the jury will either believe that characterization or they will not. I think they will, for three reasons.

1. Trump’s disdain for truth.

America has seen its fair share of lying politicians, but Donald Trump is in a class of his own. He appears to view literally any interaction with another human being as an opportunity to be exploited and a game to be won. In Trump’s world, rules are for chumps, norms are for losers, and the truth is whatever you can get another person to believe— nothing more. And of course, history makes clear that this approach has been quite effective at advancing Trump’s interests in certain settings—preening on the set of a game show, for example, or spinning up a fawning, frothing crowd at a campaign event.

But not only will those antics not work in a courtroom, they will backfire. Given the nature of the allegations against him, Trump will have to take the stand even though he has a right not to, and given his nature, he will lie to the jury just like he has lied to everyone else his entire life.

2. Trump’s disdain for process. Again, Donald Trump doesn’t see the world the way normal people do. Instead of institutions to be respected and rules to be followed, he sees marks to be gulled and systems to be gamed—emphatically including elections and trials. Trump’s complete disdain for fair procedures—and for people who meekly accept the results of those procedures when they lose—will be on full display throughout every stage of all four of the criminal cases against him.

3. Complexity. The third reason Trump will be convicted in one or more of the cases against him is this: complexity. Litigation complexity is hard enough to manage with a client who plays it straight, both with the court and with their own counsel. But Trump doesn’t play it straight—he never has, and it appears he’s constitutionally incapable of doing so. So he will lie: in court, in public, on social media and—fatally—to his own lawyers.

Judges will become increasingly disgusted by the shenanigans and stop giving Trump any benefit of the doubt

So you can put a fork in Donald Trump—he’s done.


(full article online )


 
But the biggest difference between the federal case and the state case isn’t the number of defendants or counts in the indictment. It’s about the central role that race is likely to play not in the federal case but in the state case, from the race of the prosecutor, to the focus on Black election worker Ruby Freeman, to the essential nature of the race-baiting bogus voter-fraud charges in Georgia that formed Trump’s basis for falsely claiming that he was the rightful winner.


(full article online)


 
Facing charges along with Trump:

Jeffrey Clark: assistant attorney general at DOJ
Mark Meadows: Trump chief of staff
Rudy Giuliani: Trump attorney
John Eastman: Trump attorney
Ken Cheseboro: Trump attorney
Jenna Ellis: Trump attorney
Sidney Powell: Trump attorney
Ray Smith: Trump attorney in Georgia
Robert Cheeley: Trump attorney in Georgia
Michael Roman: campaign adviser who planned fake elector meeting
David Shafer: former state GOP chair and fake elector
Shawn Still: former state GOP finance chair (now state senator) and fake elector
Stephen Lee: accused of harassing Fulton County election worker Ruby Freeman
Harrison Floyd: accused of harassing Fulton County election worker Ruby Freeman
Trevian Kutti: accused of harassing Fulton County election worker Ruby Freeman
Misty Hampton: former Coffee County elections supervisor
Cathleen Latham: former Coffee County GOP chair and fake elector
Scott Hall: another accused Coffee County conspirator
Charges Trump personally faces:

1 Violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act
5 Solicitation of violation of oath by public officer
9 Conspiracy to commit impersonating a public officer
11 Conspiracy to commit forgery in the first degree
13 Conspiracy to commit false statements and writing
15 Conspiracy to commit filing false documents
17 Conspiracy to commit forgery in the first degree
19 Conspiracy to commit false statements and writings
27 Filing false documents
28 Solicitation of violation of oath by public officer
29 False statements and writings
38 Solicitation of violation of oath by public officer
39 False statements and writings


 
Donald Trump has 18 co-defendants in Georgia. While some of them are familiar names, others may only register dimly or be complete unknowns. But they’ll take on more importance in the next few weeks. Some of them, like David Shaker, Shawn Still, and Cathy Latham, who were among Georgia’s fake electors, show up in roles where it’s unlikely they had much, if any, direct contact with the former president. Then, there’s Mike Roman.

Roman has had an interest in propagating false claims of voter fraud for a long time. He was doing it as far back as the early 1990s, when he was involved in a Pennsylvania race that was overturned based on allegations of voter fraud. Before becoming an advisor to Trump, he ran a secretive in-house intelligence unit for the conservative Koch brothers organization, making upwards of $250,000.00 a year for his voter suppression work. He worked on the 2016 election, took on a White House role doing special projects that was never well defined, and was back on the campaign staff by 2018. He became Trump’s director of Election Day Operations for 2020. Traditionally that’s the type of position that involves efforts to get out the vote, but in Roman’s case, many people familiar with his work believed he would focus again on undercutting the legitimacy of the election results by pushing fake claims of fraud.

Evidence that surfaced during the January 6 committee hearings placed Roman in a central role in the organization of the seven slates of fake Trump electors in battleground states including his home state, Pennsylvania. One of the allegations in the Georgia indictment is that in late November 2020, Roman was encouraging other campaign officials to contact state legislators in Georgia to urge them to unlawfully appoint Trump electors. Roman even kept a spread sheet with names and contact information for fake electors in it.

Roman told the January 6 committee that his role with the Trump campaign was maintaining contacts with state officials and tracking voting-related legislation before the election. In his deposition he said that “It was a lot of drilling down into the mechanics of the electoral process and what the campaign was doing to ensure that every voter that was coming out was able to cast a ballot and that illegal ballots, if there were any, would be identified.” The committee’s report reveals that it was Roman who dispatched a staffer to the Capitol to deliver the fake elector certificate to Congress. Roman took the 5th when he was asked about it.

The wasn’t the only thing Roman declined to testify about, out of concern his own testimony would incriminate him. He refused to answer questions about any conversations he might have had with Trump about calls Trump had with state legislators to encourage them to appoint fake slates of electors. He declined to reveal “other options for changing or affecting the results of the 2020 Presidential election” that he and Trump might have discussed. And he refused to tell Congressional investigators whether he discussed the alternate elector plans with Trump before or after the fake slates voted on December 4.

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Roman was charged in Georgia with the RICO count all 19 defendants are named in. In addition, Roman was charged with 2 counts of conspiracy to commit forgery, 2 counts of making false statements, conspiracy to impersonate a public officer and a conspiracy to file false documents. That’s a lot of luggage. Roman could be looking at as much as five to 20 years in custody if convicted on the RICO charge alone, which makes you wonder whether the veteran political operative might not be a candidate to cooperated against Trump.

All of those unanswered questions make him sound like the kind of guy prosecutors would have a lot of interest in speaking to—especially the potential for learning about direct conversations he had with Trump about the fake electors plot and other activity that is now charged as criminal. Although Roman clammed up in front of the January 6 committee, there was speculation before Special Counsel Jack Smith brought his election fraud indictment that Roman was considering cooperating. Some reporting suggested Roman was actually cooperating.

Like everyone other than Trump, Roman avoided indictment at the hands of Jack Smith. That makes it hard to know for certain whether he was cooperating. But it seems likely that if he was, he would have cooperated with Fani Willis, in Georgia, too. That means her decision to charge him, rather than including him in the group of unindicted co-conspirators, casts doubt on the issue of whether he is in fact cooperating. But now that he’s named in the Fulton County indictment, the clock is ticking for Roman to decide what role he wants to play, witness or defendant. If he’s not cooperating, this may be the motivation he needs to finally answer some of those questions about conversations he had with Trump and what the then president knew and what he was willing to do to hold onto power.



 
Former President Donald Trump has pleaded not guilty to 37 counts brought against him by the Department of Justice for mishandling classified information. This is his right as an American citizen. It is also his right to make the case that he is innocent of criminal wrongdoing. But it is wrong and dangerous to undermine public confidence in the rule of law itself by calling the case a “witch hunt,” and, as he has previously done, fomenting the baseless conspiracy theory that there is a government-controlled plot to bring him down.


Attacking the process and all connected with it is a tried-and-true tactic of individuals burdened by unfavorable facts, as Trump is. Distracting from these unfavorable facts with whataboutism is another. But these disingenuous approaches threaten the very foundations of our country, which are predicated on our citizens’ belief in the rule of law – the principle that our laws are equally enforced, that guilt or innocence is determined by an independent party and that our leaders defer to the institutions responsible for it.

Those of us who believe in civil discourse must seek to shore up our foundations, push back against Trump defenders’ attacks on the rule of law and refuse to be distracted. The role of the institution charged with getting to the bottom of the facts of this matter is straightforward. The job of prosecutors and investigators at the Department of Justice is to investigate criminal wrongdoing and bring individuals who violate the rule of law to justice.

An overwhelming number of federal prosecutors, like Special Counsel Jack Smith, who is overseeing the Trump probe, are career employees of the Justice Department rather than political appointees of the president. Nor was this prosecution instigated by the White House. Attorney General Merrick Garland recused himself and appointed Smith as a special counsel under DOJ regulations, which are designed to shield special investigations and prosecutors from possible political interference from the normal day-to-day supervision of the attorney general and other political appointees.


 
[ The America Donald Trump wants the US to become]

Before many people had a chance to fully read through the Fulton County, Ga., indictment against former President Donald Trump and 18 co-defendants, malicious online actors had already done their work.

On a far-right website, where the QAnon conspiracy theory originated, an anonymous user on Tuesday shared a list of the 23 grand jurors with their supposed full names, ages and addresses. Amid a torrent of other posts speculating on the race and religion of the jurors, and rife with derogatory slurs, the implication was clear: This was a target list.

In Georgia — unlike in federal cases, for example — it is standard practice to list the names of grand jurors in indictments. But given the high profile nature of this case and an increasing appetite among Americans for political violence, some are wondering whether more might have been done to safeguard jurors' privacy.

"I don't know what the jurors knew before going into this," said Sara Aniano, disinformation analyst at the Anti-Defamation League's Center on Extremism. "If they were briefed on the risks, then maybe that's all that could have been done."

So far, Aniano said the list of jurors' supposed personal information has not been widely circulated. She said she found it on only three social media platforms, popular with the QAnon and MAGA communities.

Nonetheless, she said it's still concerning.

"It doesn't take all that much to get that information into the wrong hands, especially if they know where to go," she said. "And it doesn't take many wrong hands to lead to harassment or potentially violence."



 
The title quote is from Eugene Robinson’s column in this afternoon’s WaPo: Trump’s most racist supporters are coming to his defense:

Meanwhile, in Atlanta, Fulton County District Attorney Fani T. Willis, who filed a massive racketeering indictment against Trump and 18 co-defendants on Monday night (and is African American), also has received racist threats that include pictures of gallows and nooses.
And the names and purported addresses of the grand jurors who returned the Fulton County indictment were doxed on a pro-Trump fringe website, according to NBC. The network said one of the responses to the list read: “These jurors have signed their death warrant by falsely indicting President Trump.”
-----
Robinson quite rightly focuses on the attacks on African-Americans (and other people of color), especially, who as prosecutors and judges are preparing to hold Trump accountable for his actions. But I want to address another aspect that Robinson only touched on:

It was always just a matter of time before threats against the public officials and everyday citizens who are holding Trump accountable became explicitly violent and racist. The only question is whether the Republican Party is going to pretend not to notice — which is the same thing as actively joining in. [emphasis added]
There was always an implicit racist aspect to Trump’s threats against anyone who stood in his way, and Robinson is correct to say it is now explicit. But Trump’s habit of calling for violence has always been explicit. During the 2016 campaign, he called on his supporters to beat up protestors and “promised” he would pay their legal bills. (I don’t recall that anyone actually took him up on it, but if so, they would have found his promise was worth what his other promises were — bupkes.)

Political violence has a long history in this country. Just ask Alexander Hamilton. Or Huey Long. Or the four assassinated presidents (plus a couple who almost were). But in general, this political violence has been directed at specific individuals in public life. This threat to the grand jurors, ordinary citizens who stepped up to do their duty to the country and Constitution, represents a new depth that we have rarely if ever seen before. We protect our presidents; we can, when necessary, protect public servants like Judge Chutkan and DA Willis. We simply do not have the resources to protect every private citizen who serves for a moment, much less the multitude of other citizens who do nothing more than express an opinion that Trump doesn’t like.

And Trump knows that. He’s counting on it.


(full article online)


 

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