Unpacking the Georgia Trump Indictment

A wide-ranging RICO conspiracy

We now have the long-awaited Georgia state indictment of Donald Trump. It’s an impressive piece of work. It’s nearly 100 pages long and names nineteen defendants, including the former president, and contains a total of 41 counts. Using a sweeping RICO conspiracy charge as Count One, it tells the now mostly familiar story of the efforts by Trump and his allies to overturn the 2020 presidential election.

The individual criminal charges are based on acts that took place in Georgia. But Fulton County District Attorney Fani Willis has used the indictment to tell the full story of the scheme to overturn the election, including actions the defendants took in several other states and Washington, D.C. The indictment alleges that scheme began the day after election day, when Trump gave a speech falsely claiming he had won the election, and continued on even months after Joe Biden was sworn into office.

This is how the charges begin:

Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.

It’s a formidable indictment, one that should have Trump and his co-defendants worried.

 

Fulton County DA Fani Willis (credit: Elijah Nouvelage - Reuters)

The Defendants

This is the fourth indictment of Donald Trump this year. In the New York state hush money case and D.C. federal Jan 6 indictment, Trump is the only defendant. In the Florida Mar-a-Lago documents case, he has two co-defendants who played a relatively minor role. This case includes the full cast of characters involved in the efforts to overturn the election.

In addition to Trump, the defendants include five attorneys who were unindicted co-conspirators in the D.C. federal case: Rudy Giuliani, John Eastman, Kenneth Chesebro, Jeffrey Clark, and Sydney Powell, along with another Trump attorney, Jenna Ellis.

This indictment also charges Mark Meadows, Trump’s former Chief of Staff. He was left out of the D.C. case, which led some to speculate he might be cooperating with the special counsel. The fact that he’s been indicted in this case makes that seem somewhat less likely, but doesn’t necessarily rule it out.

The other defendants are a collection of Trump campaign workers, state GOP officials, Georgia fake Trump electors, state election officials, and others involved in the efforts to overturn the Georgia election results.

The Washington Post prepared a very helpful list of all the defendants and their roles. Rather than repeat all of that, here is a free link that will let you read it without a subscription.  

The Scheme

The indictment charges a sweeping conspiracy by Trump and his co-conspirators to overturn the results of the 2020 presidential election. The facts are largely familiar by now from the January 6 Congressional Committee hearings and other sources, including the D.C. federal indictment returned by Jack Smith. The efforts included spreading lies about election fraud, seeking to persuade or pressure state officials to overturn their election results, and sending fake Trump electors to Washington as part of a plan to have vice president Pence declare Trump the winner on January 6.

The non-RICO crimes focus on actions that took place in Georgia related to the Georgia election. But the RICO conspiracy also contains allegations about efforts in other states including Arizona, Michigan, and Pennsylvania, as well as steps taken in Washington, D.C. (Of the first eighteen overt acts alleged, all but two took place in states other than Georgia.)

Other portions of the indictment focus on aspects of the scheme that were unique to Georgia. There are charges for harassing and attempting to influence state election worker Ruby Freeman, who had to go into hiding after being targeted and falsely accused by Trump and Rudy Giuliani of participating in election fraud. There are also charges under the Georgia computer crimes statute for a scheme in which Sydney Powell was heavily involved, to improperly access voting machines and voter information from Coffee County, GA.

The Charges

Count One, which makes up the majority of the indictment, charges all nineteen defendants with a conspiracy to violate the Georgia state RICO law. More about that below.

There are 41 counts in total. The other counts charge individual incidents that allegedly constituted Georgia state crimes of making false statements or writings, soliciting a public official to violate their oath, forgery, witness tampering, computer crimes, perjury, impersonating a public official, fraud, and conspiracy.

The charges all relate to the efforts to overturn the 2020 presidential election results in Georgia. They are based on several different areas of alleged misconduct:

• False statements made to Georgia state officials and legislators concerning alleged election fraud

• False testimony in Georgia legislative hearings about alleged election fraud

• Pressuring state officials to violate their oaths by throwing out the election results, certifying Trump electors, or taking other steps to call the election into question

• Signing and submitting various documents related to the slate of fake Trump electors

• Impersonating a public official by falsely claiming to be an official state elector

• Intimidating, harassing, or trying to influence a witness, election worker Ruby Freeman

• Breaking into computerized voting machines and improperly obtaining voting records

Charges Against Trump

Donald Trump himself faces thirteen counts:

• The RICO conspiracy

• Soliciting a public official to violate their oath – for asking the speaker of the Georgia House to convene a special session to unlawfully appoint state electors

• Conspiracy to impersonate a public official – for taking part in the scheme to have the Trump electors present themselves as duly elected and qualified state electors

• Conspiracy to commit forgery, make false statements and writings, and file false documents (5 counts) – for various false documents signed and submitted as part of the fake electors scheme

• Filing false documents – charged with John Eastman for filing a lawsuit in Georgia federal court on December 31, 2020 that contained false claims about election fraud

• Soliciting a public official to violate their oath and making false statements (2 counts) – for the infamous January 2, 2021 “perfect phone call” to Georgia Secretary of State Brad Raffensperger

• Soliciting a public official to violate their oath and making false statements (2 counts) – for a letter he sent to Raffensperger in September, 2021 (eight months after Biden took office) asking Raffensperger to decertify the election results and declare Trump the winner of Georgia

The RICO Charge

There has been a lot of focus on the fact that the lead charge is a violation of the Georgia state RICO law. Commentators will rhapsodize about how broad and powerful RICO is, but that’s a bit over-hyped. At bottom, it’s just a glorified conspiracy charge.

RICO stands for Racketeer Influenced and Corrupt Organizations. The Georgia state law is based on the federal RICO Act and is quite similar to it. Although RICO was initially aimed at organized crime and drug cartels, it is written broadly enough to apply to many large white collar conspiracies as well.

Law professor Gerald Lynch has called RICO, “The crime of being a criminal.” RICO doesn’t really punish a new criminal act. It punishes committing a pattern of certain other criminal acts – those that fit the definition of “racketeering activity” – in an organized way through an “enterprise.”

An “enterprise” can be a legal business entity like a corporation. But it can also be a group of individuals who are associated together with a common purpose, even if they are not otherwise a legal entity. The indictment in this case alleges such an “association in fact” enterprise. It charges that the nineteen defendants, along with thirty unindicted co-conspirators, were associated together and made up a “criminal organization” that engaged in various illegal activities in Georgia and elsewhere.

This indictment follows a very typical structure. It uses Count One, the RICO conspiracy, to set out the entire scheme to overturn the election. That charge takes up the bulk of the indictment. It lists 161 different overt acts, in chronological order, going step by step through the actions taken by the co-conspirators. Some of those overt acts are also state crimes, and those crimes are charged in the subsequent forty counts. Some of those crimes also qualify as “racketeering activity” under the Georgia law and thus form the basis for the RICO charge.

There has already been some misleading commentary on social media about the overt acts, claiming that Georgia is criminalizing things like Trump’s Tweets. Remember that overt acts do not need to be illegal in and of themselves. They are just steps taken to further the conspiracy. For example, if I buy some nylon stockings so my friends and I can put them over our heads to rob a bank, buying the stockings could be listed as an overt act in a charge of conspiracy to commit robbery. That doesn’t mean prosecutors are criminalizing lingerie.

RICO receives a lot of hype and has a certain panache because of its association with organized crime. But many crimes that qualify as “racketeering activity” are white collar offenses not typically associated with mobsters. This is not to downplay the seriousness of the charge or take anything away from the prosecution. But in the end this is really just another big conspiracy case.

Significance of This Case

This fourth Trump indictment is different, and significant, in several ways.

First, as already noted, this is the first time the full cast of characters involved in the efforts to overturn the election has been indicted. Special counsel Jack Smith chose to take a rifle shot approach by charging Trump alone, presumably hoping to move the case along more quickly. He may charge other co-conspirators in the future, but he hasn’t yet. Willis has brought in the entire gang. This is the first indictment that seeks to hold all of the high-level players responsible.

Second, this is a state case. That makes it pardon-proof. Even if Trump managed to win re-election and scuttle the federal cases against him, he can’t do anything about state prosecutions or convictions.

Third, this case may be televised. Georgia state courts apparently are much more open to having their proceedings televised than the federal courts. If the case is tried in state court, it could be an important opportunity for the nation to see the evidence presented, an opportunity the federal cases will not provide. (Trump will almost certainly try to have the case removed to federal court. If that succeeds, then the proceedings presumably would not be televised.)

Finally, the potential sentence could be significant. The RICO statute provides that those convicted shall be punished by a sentence of “not less than five nor more than twenty years’ imprisonment.” There has been some debate online over whether this means a mandatory minimum of five years in prison or whether the judge still has the ability to suspend the sentence or grant probation. As of this writing I haven’t seen a definitive answer, but I’ll keep you posted. Obviously if it’s a mandatory prison sentence, that’s going to be a significant aspect of this prosecution. Update: I’ve now learned that this is not a mandatory five-year minimum, as some have been claiming. The judge still has discretion to suspend the sentence and grant probation.

What’s Next

This case offers a lot of opportunities for co-conspirators to flip and cooperate. Many of these defendants are not part of Trump’s inner circle and might be more open to cutting a deal to help themselves. Those who are closer to Trump are now indicted for the first time, which increases the pressure on them to cooperate as well.

The case has been randomly assigned to state judge Scott McAfee. He’s a brand-new judge appointed by Georgia Governor Kemp last February, and is a former state and federal prosecutor.

DA Willis announced that arrest warrants have been issued for all the defendants. They have until a week from Friday to turn themselves in voluntarily. She also said she plans to try all nineteen defendants together and would like to go to trial in six months. Neither of those things is very likely to happen.

With Trump now facing four criminal trials, the scheduling issues are going to get even more complicated. We don’t know which trial will end up going first or when that will be.

At least we are not expecting any additional indictments — for now.