This week, Fulton County District Attorney Fani Willis launched a 98-page missile directly into the heart of American politics. That missile was a 41-count indictment charging former President Donald Trump and 18 alleged co-conspirators with violation of the Georgia version of the Racketeering Influenced and Corrupt Organizations Act — acts in furtherance of a conspiracy to commit a criminal act. In this case, the criminal act, according to the indictment, was “knowingly and willfully (joining) a conspiracy to unlawfully change the outcome of the election in favor of Trump.”
Whether this amounts to a crime comes down to the question of whether Trump himself knew that he had lost the election; if he believed that he had won, then all the other accusations about him fall away. After all, it is not a crime to pursue a spurious legal strategy in furtherance of a delusion. But by charging RICO, Willis extends the case to people who may have admitted that Trump lost the election.
This accomplishes two purposes. First, it puts these alleged co-conspirators in serious legal jeopardy, giving them reason to flip on Trump himself. Second, it may allow Willis to charge Trump as part of a criminal conspiracy even if he personally believed he won the election — after all, case law suggests that co-conspirators can be charged under RICO even if they didn’t agree on every aspect of the conspiracy, so long as they knew the “general nature of the enterprise.”
The Georgia case also presents unique danger to Trump because it is a state case. The Manhattan case against Trump rooted in campaign finance allegations is incredibly weak and is an obvious stretch; the Florida and D.C. cases against Trump are federal, which means that if elected president, he could theoretically pardon himself.
The Georgia case is both wide-ranging and state-based: if convicted, Trump would go to state prison, and would have no ability to pardon himself. Georgia Gov. Brian Kemp does not have unilateral pardon power, either: In Georgia, pardons work through an appointed board. So, the very real prospect exists that even were Trump elected, he’d start his term from a state prison.
But even that discussion is premature: The Georgia case, along with all the other indictments against Trump, are going to lock him into courthouses for the rest of the election cycle. What’s more, every waking moment for the media will be coverage of those court cases. That will make it impossible for Trump — even if he were so inclined, which has shown no evidence of being — to talk about President Joe Biden rather than his legal peril.
And there has yet to be a single piece of data suggesting that Americans are driven to vote for Trump because of his legal troubles. To pardon yourself, you have to be elected president. But spending your entire presidential race in the dock makes that a radically uphill battle.
All of this is quite terrible for the country. No matter what you think of Trump’s various legal imbroglios — from mishandling classified documents to paying off porn stars to calling up the Georgia secretary of state in an attempt to “find” votes — the glass has now been broken over and over and over again: Political opponents can be targeted by legal enemies.
It will not be unbroken. If you think that only Democratic district attorneys will play this game, you have another thing coming. Prepare for a future in which running for office carries the legal risk of going to jail — on all sides. Which means that only the worst and the most shameless will run for office.
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