Stanley Dunlap, Georgia Recorder
The high-profile 2020 election interference case presented by Fulton County District Attorney Fani Willis against former President Donald Trump and his 18 allies presents a unique set of challenges, according to prosecution and election experts.
Last Monday, a Georgia grand jury indicted 19 suspects, including Trump and his political supporters, on charges of racketeering and conspiracy. They were charged with crimes across several states for attempting to solicit elected officials, making false statements, and other charges related to the 2020 election interference.
Georgia’s RICO Act (Racketeer Influenced and Corrupt Organizations) is being used in the investigation of the former president and his inner circle, which is modeled after a federal law designed to target mafia leaders and other conspirators suspected of committing crimes.
Several members of Trump’s legal and political team, as well as Georgia state and local political allies, are accused of spreading unfounded allegations of massive voter fraud, which led to incidents such as the breach of the state’s voting system in Coffee County in January 2021 and the filing of false electoral votes declaring Trump the winner by some Georgia Republicans.
Read the 98-page indictment here.
As part of the conspiracy case, multiple defendants are accused of making unfounded false statements about election fraud to state officials in Georgia, Michigan, Pennsylvania and Arizona in order to appoint illegitimate electors to cast ballots for Trump despite his losses in those states.
Trump dismisses the Fulton County indictment as overzealous and a politically motivated move by an elected Democratic prosecutor attempting to gain public favor in Georgia’s largest county after Trump’s defeat in the 2020 election to former Vice President Joe Biden. Biden’s narrow Georgia victory sparked unfounded claims among Trump and his supporters of mass voting fraud.
Trump was scheduled to hold a press conference in New Jersey on Monday to criticize the Georgia election fraud probe, just several days before the Fulton County court deadline for defendants to surrender. But he canceled it late last week on the advice of his attorneys.
The RICO case presents Willis a central theme of alleged felony conspiracy for similar attempts to contact state election officials and legislators to block Biden’s wins in Georgia and other key states ahead of the planned ceremonial Jan. 6, 2021 certification ceremony by the U.S. Congress and former Vice President Mike Pence.
One of the high profile suspects with close ties to Trump is Rudy Giuliani, an attorney and former mayor of New York City who attended Georgia Legislative hearings after the 2020 election where he promoted conspiracy theories about election fraud and advocated for lawmakers to intervene on Trump’s behalf by appointing alternate GOP voters.
Trump’s former White House Chief of Staff, Mark Meadows, is accused of setting up a phone call between Trump and the secretary of state to allegedly ask a state investigator for money to speed up a ballot signature ballot process.
A number of other election interference suspects are being linked to a breach in rural Coffee County where some local election and GOP party officials assisted Trump attorneys and forensic experts in gaining access to the Dominion Voting System machines used for the election.
The rules of evidence for what’s admissible in a conspiracy case are broader than a regular criminal case, said former Gwinnett County District Attorney Danny Porter.
In Georgia, prosecutors have the option of introducing evidence that doesn’t seem to relate directly to the conspiracy, but is nevertheless relevant, Porter said.
“It makes it easier in terms of what you have to show and can you bring in acts that seemingly are not related and may not even be crimes themselves, but that they contribute to the criminal enterprise,” he said.
Originally passed by Congress and signed into law by Republican President Richard Nixon in 1970, the racketeering and corruption act targeted criminal syndicates operated by mafia organizations. The federal law made it easier to prosecute multiple suspects who were directly involved in certain crimes or who benefited from them.
RICO laws have now been enacted in nearly three dozen states in the country.
The sweeping nature of the laws is valuable because they allow district attorneys to charge people with criminal conspiracy even if they have never visited the jurisdiction where the case is being investigated, Porter said.
“This case is essentially a candidate of why the RICO statute was invented,” Porter said.
Among the most notable differences between the federal RICO statute and Georgia’s version is that the federal law prohibits prosecution of an executive officer while performing their official duties. U.S. Senator Lindsey Graham used a similar argument in the Fulton investigation. The veteran Republican senator’s attorneys argued in court filings that Graham was acting in his role as chairman of the Senate Judiciary Committee when he contacted the Georgia secretary of state’s office about the procedures on disqualifying absentee ballots.
Another member of Trump’s inner circle facing multiple counts in the Fulton case is Trump’s former White House Chief of Staff Mark Meadows. A judge in the U.S. District Court Northern District of Atlanta is scheduled to hold an Aug. 28 hearing to consider Meadow’s recent motion to have the Fulton investigation moved to federal court.
The Fulton County investigation was launched after the public release of a Jan. 2, 2021 phone call in which Trump asked Georgia Republican Secretary of State Brad Raffensperger to “find” nearly 12,000 votes – enough to reverse the election results.
In January 2022, Willis requested that Fulton County judges allow her to empanel a special purpose grand jury that would eventually spend months hearing testimony from more than 75 witnesses. The special grand jury was asked to review evidence before recommending that prosecutors should pursue charges against multiple individuals.
Aggressive trial schedule, juror threats
Willis is pushing for the multi-defendant conspiracy trial to begin in early March 2024, which is an aggressive timeline that would put the trial in the midst of the Republican presidential primary. For now, Trump maintains a healthy lead over the rest of the GOP field.
The tight timeline seems likely to be challenged, as Trump and other defendants are expected to have attorneys file an onslaught of motions to delay or stop the case before it goes to trial.
Christina Harvey, the executive director of the progressive anti-vote suppression organization Stand Up America, said that RICO trials are long affairs that in this instance will likely result in Trump and 18 defendants’ lawyers trying to delay the case.
“Now that we’ve gotten this far, it’s vital that this case be tried before the 2024 election,” Harvey said. “Not just because Donald Trump may be on the ballot, but because it’s critical in a democracy to make it 100% crystal clear to election officials, candidates, party officials and campaign staffers that attempting to steal an election is illegal and punishable by time in prison.”
The Fulton County district attorney is currently embroiled in another RICO case that could shine some light on what to expect in the 2020 election interference case.
In a wide-ranging street gang investigation, Willis’ office has filed RICO charges of first degree murder and drug trafficking against Atlanta rapper Young Thug and members of his record label, Young Slime Life. The YSL case has taken more than six months attempting to get a jury in place for the trial.
Threats of violence against jurors are common in high-profile cases such as the YSL and Trump election probes, which could discourage many prospective jurors from taking part in the intensive investigation, Porter said.
The Fulton County sheriff said Thursday it would investigate and prosecute threats made against jurors to the fullest extent. Fulton County Sheriff Patrick Labat says several jurors who just helped deliver indictments against Trump and his allies have been subjected to online threats.
“You not only want to avoid (jurors) who are afraid and fear and make some determination in the case, but you also have to look out for the people who are dying to be on that jury,” Porter said. “Jury selection in this case is gonna be extremely complex, and there are going to be a lot of factors that have to be brought in by both sides and considered.”
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