Donald Trump’s Gravest Threat is in Georgia; An Indictment is Likely – AG Garland May Have to Back Off for Legal, Political, Optics Reasons
Donald Trump’s Gravest Threat
WASHINGTON D.C. (January 3, 2023) – An ever growing number of experts have concluded that former president Donald Trump’s gravest legal threat comes not from the newly appointed special counsel Jack Smith.
But rather from the DA of Fulton County, Georgia; in part because Attorney General Merrick Garland may nix one or more proposed federal prosecutions for legal and political reasons, as well as the troubling “optics,” says public interest law professor John Banzhaf.
On Sunday, civil rights attorney David Henderson said on MSNBC that “I think in terms of prosecutors, he has the most to fear down in Georgia because Fani Willis is not going to back off, and many of the arguments that we hear about prosecuting the former president are not going to be persuasive to her.”
Also, just last week Willis wrote “target” letters to 10 more Republican electors, putting them on notice that they too could be indicted – a very clear indication that she is moving forward. It’s hard to see how electors in a scheme to affect the election could be prosecuted without also including the person behind and encouraging the entire scheme, argues Banzhaf.
Laurence Tribe, professor emeritus of constitutional law at Harvard University, has written “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.”
Earlier, THE HILL reported that legal experts say “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,” notes Banzhaf, whose formal detailed complaint triggered the current Georgia criminal investigation of Donald Trump, including the issuance of subpoenas for many close to him by a special grand jury.
“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.
He 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.”
“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, “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.”
Georgia’s Criminal Law
As the New York Times further explained: “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.”
There are many other indications that Willis may be the first prosecutor to indict Trump, suggests Banzhaf, whose criminal complaint triggered her investigation, and who also played a role in obtaining special prosecutors for former president Richard Nixon, and finally bringing former Vice President Spiro Agnew to justice.
Professor Banzhaf has long suggested that the investigation by Willis is more likely to charge Trump than any federal prosecution to indict him for his role in allegedly inciting a riot on January 6th. Here are four reasons why. Some of the reasons also apply to possible federal prosecution for crimes related to the federal documents found in Mar-a-Lago.
FIRST, he says, the evidence in Georgia is clear and uncomplicated, unlike the words of Trump’s January speech which many see as ambiguous – words of incitement which are similar to those used by other public figures – and where prosecutors might have to argue from possible inferences.
In the Georgia case the language of Trump’s telephone call to Republican Secretary of State Brad Raffensperger 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 publicly announced that they 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 the 2024 presidential election, by trying to throw his opposition into prison, or at least to damage him with federal indictments and the trial itself.
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, already a declared candidate, would be the strongest opponent of Joe Biden or of any other Democrat in the 2024 presidential race. So indicting him for federal crimes, 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 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 January 6th rally.
Under the Supreme Court’s Brandenburg ruling, the government may criminally punish someone for making a political 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 actions of his followers – enough time, for example, for authorities to have taken preventive steps if they seemed at the time to be warranted – it’s not clear that the lawless action was “imminent” in the same sense of a hypothetical crowd being urged to “hang him now.”
More importantly, can it be said – much less 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 so clearly “likely to incite or produce violence”?
If they didn’t, which is apparently the case, this suggests that even professionals may not have believed that lawless action was “likely” – not just possible or conceivable. In this regard, hindsight may be questionable, suspect, and not very persuasive, argues Banzhaf.
FINALLY, 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 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.
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 many persons very close to and closely involved with Trump having been subpoenaed, everyone who feels that Trump must be prosecuted should keep a very sharp eye on DA Fani Willis in Georgia, counsels the law professor.