“Trump Will Be Indicted” – Yes, But Where? Boxgate Likely, But Georgia May Be First, If Not Only
WASHINGTON, D.C. (August 29, 2022) – “Trump will be indicted,” say recent reports in The Daily Beast, Business Insider, Yahoo, Salon, Political Wire, Newsweek, and the Washington Monthly, to name only a few. Even Tucker Carlson agrees, saying Trump “obviously” is going to be indicted.
All were focusing on the documents involved in the search of Mar-a-Logo, which some are dubbing “Boxgate,” says public interest law professor John Banzhaf, who helped obtain special prosecutors in the original -gate scandal, Watergate.
But Banzhaf joins Alan Dershowitz in suggesting that the federal government under Democratic control will be very reluctant to indict a former president who is also the clear front runner to challenge the Democrats for control of the White House in 2024, and that the first – and perhaps only – indictment of Trump may occur in Georgia where the same “optics” and other political considerations do not apply.
“An Atlanta-area prosecutor’s investigation into former President Trump’s effort to overturn his 2020 electoral defeat in Georgia poses the most significant legal threat to the former president, legal experts say,” reported THE HILL in late July, notes Banzhaf, who may be somewhat biased because it was his detailed complaint which triggered that current criminal investigation of Trump, including the empaneling of a special grand jury and the issuance of subpoenas for many figures close to Trump.
Since then numerous media outlets have reported an acceleration of investigative efforts by Fulton County DA Fani Willis, including demands for the testimony under oath of many Trump aides and confidants in the alleged scheme to undermine the presidential election by “finding” many new votes for Trump in the state.
“The steps her office has taken, including empaneling a special grand jury and subpoenaing high-profile witnesses, are very likely not steps she would have taken if she did not feel there was at least a significant possibility that she will move forward with charges,” said one expert, who added that “the stakes in holding Trump accountable for an attack on our democratic system of government couldn’t be higher, and the evidence is extremely compelling.”
Professor Banzhaf has also cited several additional reasons, including the predictions of many experts, suggesting that Willis will be the first to indict Donald Trump.
As noted, the special grand jury investigating Trump and others regarding criminal interference in the 2020 elections has persuaded a judge to issue subpoenas to compel the testimony under oath of many close collaborators in the alleged criminal schemes, indicating that prosecutors are getting closer to Trump and to his own criminal involvement.
Faced with possible prosecution themselves, some may will “flip” on Trump, thereby providing important evidence and what he knew, and what he said behind closed doors, suggests Banzhaf.
This is still another indication that Willis may be the first (and perhaps only) prosecutor to indict Trump, suggests Banzhaf, whose criminal complaint triggered her investigation, and who also played a role in obtaining special prosecutors for Nixon, and finally bringing former Vice President Spiro Agnew to justice.
Banzhaf notes that Willis has already officially reported that evidence gathered earlier, including that filed with her office by the law professor, indicated “a reasonable probability that the State of Georgia’s administration of elections in 2020, including the State’s election of the President of the United States, was subject to possible criminal disruptions.”
Previously Willis had promised that “anyone who violates the law will be prosecuted, no matter what their social status is. No matter what their economics are, no matter what their race or gender is. We are not going to treat anyone differently.” She has also announced some time ago that the grant jury would issue additional subpoenas to people in Trump’s “inner circle,” and that she hasn’t ruled out even issuing one to Trump.
Banzhaf has just filed additional evidence and analysis with Willis which might help strengthen what appears to be an already strong criminal case against Trump.
It’s customary, and usually the best practice, for prosecutors to interview and lock in the testimony of “smaller fish” in a criminal investigation before prosecutors work towards those higher ups who also participated, says Banzhaf.
With this arrangement, prosecutors can offer immunity, in exchange for damaging testimony – and sometimes also incriminating documents – to people whose culpability is smaller, and also obtain important information to use when they finally force those who culpability is higher [“bigger fish”] to answer questions under oath.
So moving on to Giuliani, Graham, and others very close to Trump strongly suggests that the investigation is about to come to an end, possible with an indictment of Trump, predicts Banzhaf.
Others agree. For example, Laurence Tribe, professor emeritus of constitutional law at Harvard University, wrote “It wouldn’t surprise me for Georgia to become the first jurisdiction to indict a former president on felony charges. And I think the charges will stick.”
“The most serious prospect of prosecution” that Trump faces is in Fulton County, Georgia, reported the New York Times in an Op-Ed by two experienced prosecutors (one Democrat and one Republican); a conclusion reinforcing an earlier 100-page analysis by seven legal experts who concluded that the former president faces a “substantial risk of possible state charges predicated on multiple crimes.”
As the two former prosecutors concluded, DA Fani “Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing. . . . She has a demonstrated record of courage and of conviction. She has taken on — and convicted — a politically powerful group, Atlanta’s teachers, as the lead prosecutor in the city’s teacher cheating scandal. And she is playing with a strong hand in this investigation. The evidentiary record of Mr. Trump’s post-election efforts in Georgia is compelling.”
The piece also noted that, important as Justice Department investigations are, Willis’s work may present the most serious prospect of prosecution that Trump and his enablers are facing.
Indeed, she has a statute at her disposal seemingly meant for this very purpose and fitting these very facts. As the New York Times piece explains:
“What’s more, Georgia criminal law is some of the most favorable in the country for getting at Mr. Trump’s alleged misconduct. For example, there is a Georgia law on the books expressly forbidding just what Mr. Trump apparently did in Ms. Willis’s jurisdiction: solicitation of election fraud. Under this statute [ GA Code § 21-2-604], a person commits criminal solicitation of election fraud when he or she intentionally ‘solicits, requests, commands, importunes or otherwise attempts to cause’ another person to engage in election fraud.”
Violation Of Additional Criminal Statutes
Banzhaf’s complaint to Willis also charged Trump with violating two additional criminal statutes: GA Code § 21-2-603 – Conspiracy to Commit Election Fraud, and also GA Code § 21-2-597 – Intentional Interference With Performance of Election Duties.
The law professor suggests that, for several reasons, the investigation by Willis is more likely to return an indictment against Trump than the other major investigations by the Department of Justice.
Another reason is that an indictment and trial in Georgia would not raise same 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 into 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 be the strongest opponent of Joe Biden or of any other Democrat in the 2024 presidential race. So indicting Trump, 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 full resources of the United States government against one person, even a rich and powerful one such as Trump.
A prosecution by a county DA would avoid most 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.
Still another reason is that Willis plans to use Georgia’s RICO – its 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 more 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 successfully 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, everyone who feels that Trump must be prosecuted should not put all their eggs into the Mar-a-Lago basket nor even in the Deportment of Justice, counsels the law professor.