By JOHN F. BANZHAF. Originally published at ValueWalk.
Trump’s “Most Serious Prospect of Prosecution” is in Georgia – NYTimes; With Manhattan DA Folding, Georgia Case is “Compelling”
Trump’s Most Serious Prospect of Prosecution
WASHINGTON, D.C. (May 3, 2022) – “The most serious prospect of prosecution” that Trump faces is in Fulton County, Georgia, reports 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.”
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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 postelection efforts in Georgia is compelling.”
The piece also noted that, important as congressional investigations are, Ms. Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing.
The newly begun investigation by a special grand jury, of Trump’s telephone call seeking to pressure Secretary of State Brad Raffensperger and others to change Georgia‘s presidential vote tallies, is especially important at this time because Manhattan District Attorney Alvin Bragg has seemingly folded, and will not pursue criminal charges against Trump, suggests pubic interest law professor John Banzhaf, whose criminal complaint triggered the investigation in Georgia.
The other remaining major investigation – of whether Trump can be criminally charged with inciting the January 6th riot – presents many legal and other problems, including a major Free Speech constitutional defense, which are not present if Willis proceeds with her promise to punish all those involved in attempting to corruptly change the result of the state’s election returns.
Georgia’s Criminal Law
Indeed, she has a statute at her disposal seemingly meant for this very purpose and fitting these very facts. As the 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.”
Banzhaf’s complaint to Willis also charged Trump with violating two additional criminal statutes: GA Code § 21-2-603 – Conspiracy to Commit Election Frau, and also GA Code § 21-2-597 – Intentional Interference With Performance of Election Duties.
The law professor suggests that the investigation by Willis is more likely to return an indictment against Trump than the other major investigation by the Department of Justice which is investigating whether it can and should indict him for his role in allegedly inciting a riot on January 6th. Here are four reasons why.
FIRST, he says, the evidence in Georgia is clear and uncomplicated, unlike the words of Trump’s January speech which many see as ambiguous, and where prosecutors might have to argue from possible inferences.
In the Georgia case the language of Trump’s telephone call to 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 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 clearly be the strongest opponent of Joe Biden or of any other Democrat in the 2024 presidential race. So indicting him, 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 fully 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 rally.
Under the Supreme Court’s Brandenburg ruling, the government may criminalize 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 by his followers – enough time, for example, for authorities to take preventive steps – 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 “likely to incite or produce violence”?
If they didn’t, this suggests that professionals may not have believed that lawless action was “likely” – not just possible or conceivable. In this regard, hindsight is questionable, suspect, and not very persuasive.
Using RICO
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 has 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, with Manhattan now out of the running, everyone who believes that Trump must be prosecuted should keep a very sharp eye on Fani Willis in Georgia, counsels the law professor.
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