The Weekend Wrap: September 15, 2024

The Georgia prosecution emerges from its slumber

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

Georgia State Case - January 6 Allegations

Judge Dismisses Three Counts: This case has been largely on hold while the Georgia Court of Appeals considers whether DA Fani Willis should have been disqualified for a conflict of interest based on her romantic relationship with the lead special prosecutor she hired. Trump and a number of other defendants have appealed Judge McAfee’s decision that disqualification was not required. The case is set to be argued on December 5.

Although the case against most of the defendants has been stayed while they take part in the appeal, there are a few defendants remaining who did not join in the appeal and have not requested a stay. That allowed Judge McAfee to decide a pending motion filed by two of those defendants — and his decision will end up benefitting Trump as well.

John Eastman and Rudy Giuliani on Jan. 6, 2021 (credit: Jim Bourg/Reuters)

Defendants John Eastman and Shawn Still moved to dismiss the entire indictment based on the Supremacy Clause of the U.S. Constitution. They argued that a state prosecution based on events involving the U.S. presidential election, including the scheme to send fake Trump electors to Washington, was prohibited. They claimed that only the federal government could evaluate and prosecute any alleged crimes related to the federal election and slates of federal electors.

Judge McAfee rejected their argument that the entire indictment was barred by federal law. He concluded that Georgia does have a legitimate state interest in pursuing criminal charges based on the efforts to interfere with its election, such as forgery of state documents or false statements in state proceedings. He did find, however, that three counts of the indictment were barred by federal law and must be dismissed: Count 14 (Criminal Attempt to Commit Filing False Documents), Count 15 (Conspiracy to Commit Filing False Documents), and Count 27 (Filing False Documents).

Counts 14 and 15 charged that the defendants attempted and conspired to send false documents (the false election certification and slate of phony electors) to a federal district court in Georgia as part of the election certification process. Judge McAfee noted that making false filings with a federal court is punishable by federal statutes (including False Statements, 18 U.S.C. 1001). He concluded that the state has no legitimate interest in policing the accuracy of filings in federal court proceedings and that allowing it do so could interfere with the federal government’s own jurisdiction over those proceedings. The Supremacy Clause therefore required that those charges be dismissed.

Similarly, Count 27 charged the defendants with making false statements in a civil lawsuit they filed in Georgia federal district court, titled “Verified Complaint for Emergency Injunctive and Declaratory Relief.” False statements in that verified complaint could be subject to federal perjury statutes. McAfee again concluded the state has no legitimate interest in prosecuting statements made in a federal court proceeding.

But other than these charges, McAfee ruled that the indictment — including the overarching RICO charge — can stand. He rightly noted that even though he struck the allegations of false filings in federal court as separate crimes, evidence of those filings could still be presented as overt acts in furtherance of the RICO conspiracy (because overt acts never need to be independently criminal).

Trump was also charged in counts 15 and 27. So even though he was not a party to this motion, McAfee’s ruling necessarily means those charges will be dropped against Trump as well. About six months ago McAfee also dismissed six other counts, including three against Trump, for being too vague. But as you might recall, originally this was a 41-count indictment. Of the thirteen charges originally brought against Trump, eight felony counts remain, including the RICO charge. (McAfee also upheld the RICO charge against various challenges in a separate ruling this week.)

So this is a win for Trump, but one that is inconsequential in the overall scheme of things. As long as the overarching RICO conspiracy charge including all defendants remains, all of the evidence regarding the counts that were dismissed will still come in as proof of the RICO conspiracy. If Trump is ultimately convicted, having these charges dropped will make no difference in his sentence. The case was overcharged in the first place; eight felonies is more than enough. Judge McAfee is probably unintentionally doing the prosecutors a favor by continuing to help them streamline their task.

Related to this dismissal order, Anna Bower of Lawfare made an interesting observation: Count 15 is the only count to which former Trump campaign attorney Ken Chesebro admitted guilt when he agreed to plead earlier this year. Judge McAfee has now declared that charge to be legally invalid. Chesebro presumably could now seek to withdraw his plea, but that would mean the government was free to reinstate all the other charges against him, including RICO. I doubt he wants to do that, particularly because he received a relatively lenient sentence of probation. But if he thought the entire prosecution might ultimately fall apart and felt like rolling the dice . . . .

Lt. Governor Avoids Fake Elector Charges: In other Georgia news, a state prosecutor announced that Lt. Gov. Bert Jones will not face criminal charges for his role as a fake elector following the 2020 election. Jones, who at the time was a state senator, was alleged to have taken part in the fake electors scheme along with others, some of whom are included as co-defendants in the case with Trump. He was one of sixteen Republicans who signed a certificate falsely stating that Trump had won the election and that they were the “duly elected and qualified electors from Georgia.”

Early in the Georgia criminal investigation, a judge ruled that DA Fani Willis was barred from investigating Jones because she had held a fundraiser for his opponent in the Lt. Governor’s race. Under Georgia law, that meant the investigation was transferred to the Prosecuting Attorneys’ Council of Georgia for reassignment. Ultimately Willis indicted three of the fake electors as part of her 19-defendant case and granted immunity to a number of others.

On Friday Pete Skandalakis, Executive Director of the Prosecuting Attorneys’ Council and a longtime Georgia Republican prosecutor who had taken over the case, issued a statement announcing that Jones would not be further investigated or charged. He wrote that his investigation included a review of all the grand jury materials, the full investigative file of the Atlanta DA’s office, review of the legislative sessions and investigations regarding the election, and four interviews with Jones, who fully cooperated and voluntarily provided his own text messages to investigators.

Skandalakis wrote his investigation found that when Jones and the other Georgia Republican electors signed the certification on December 14, 2020, they were told by an attorney for president Trump that it was being done only as a backup or insurance policy. They were told that if a pending lawsuit challenging the election was successful, the slate of alternate electors would need to be in place or Georgia’s votes could not be counted. Jones said he understood the certificate was non-binding and would take effect only if the election was successfully challenged in court. Based on that understanding, Jones signed, along with the others.

Skandalakis also reported that on January 4, Jones received an email from the Chairman of the Georgia Senate Judiciary subcommittee, who knew Jones was scheduled to attend an event with Vice President Pence in Washington the next day. He asked Jones to deliver a letter to Pence asking him to delay the electoral count for twelve days to allow further investigation of “fraud, irregularities, and misconduct” in the Georgia election. Jones agreed to take the letter and did attend the event but ultimately decided not to deliver the letter to the Vice President.

Skandalakis said he found that Jones’ actions were “within the scope of his duties as a Senator to address the concerns of constituents.” He also found that Jones lacked criminal intent because while participating as an alternate elector and signing the certification he relied upon “the advice of attorneys and legal scholars.” He concluded: “Therefore, this case does not warrant further investigation or further actions, and I consider the matter closed.”

Given the politics in Georgia, this decision is not all that surprising. But the problem with Jones’s defense is that the certificate he and the others signed contains no language saying it is contingent or will only take effect if election challenges succeed. It flatly says that Trump won the election in Georgia and that they are the duly-appointed electors. That was false. If you lie or sign clearly false documents in an official proceeding, claiming your lawyer told you it was okay generally will not be a defense. (In fact, it’s even weaker than that, because these weren’t Jones’s lawyers. “The lawyer for the other guy who really wanted me to sign the false document said it was okay” is even less of a defense.)

In Pennsylvania, for example, the Trump electors insisted on including language in their certification making it clear that it was contingent on a successful court challenge to the election. As a result, their statement was not false and those electors were not prosecuted.

This decision not to prosecute Jones does not have any direct effect on the pending Georgia indictment. But the other three electors who are defendants in the case will certainly seize on this reasoning and will seek to present a similar defense at trial. Fake electors being prosecuted in other states no doubt will make similar arguments, although the facts of each case and what the electors did and were told will certainly vary.

Skandalakis’s report is less comforting to defendants like Rudy Giuliani and John Eastman, Trump attorneys who pushed the fake electors scheme. The report is quite critical of them, noting that “attorneys for the former President continued to make false and misleading statements regarding the election results” despite the lack of any evidence of fraud sufficient to change the election result in Georgia. The report essentially blames the Trump attorneys for duping the electors and taking advantage of them.

Willis subpoenaed: Speaking of Georgia politics, a state Senate committee had subpoenaed DA Fani Willis to appear on Friday to bring documents and answer questions about what it called “alleged misconduct” in connection with the Trump prosecution. The committee apparently wants to explore her relationship with special prosecutor Nathan Wade (which led to the motion to have her disqualified), as well as whether she had any contacts with the Biden White House or Justice Department regarding her investigation. Her supporters say the investigation is politically motivated and part of an effort to support Trump. Her attorneys have challenged the subpoenas in court and Willis did not appear on Friday.

New York State Case - Hush Money/False Business Records