The Georgia prosecutor who indicted Donald Trump and 18 co-defendants — yes, she indicted them, the grand jury just left a mark — has said she will try to bring the case to trial within six months. I’ve been practicing criminal law for 60 years, I’ve never seen a trial with 19 defendants, an indictment over 90 pages and this level of complexity brought to trial in almost six months. It just can’t happen.
Then why did she start this case, which is about lying, by deceiving the American people? Because to her, this case seems entirely political. Will she use it to run for office, or will she curry favor with other Democrats?
This extensive indictment rests largely on the so-called RICO Act – a law designed to prosecute and bankrupt members of organized crime. I remember a client of Italian-American descent who complained that the law was aimed at the mob: “Why else would they call it RICO instead of Morris or John?” He was observant.
After enactment, the RICO law became a favorite of prosecutors, although many RICO convictions were later overturned on appeal. It turned out that RICO prosecutions were more appealing to jurors than to judges. That’s because jurors want to convict racketeers, while judges need to apply the law fairly.
A serious problem with this charge is that the 19 defendants may not all share the same state of mind or intent. Some of them, including Donald Trump himself, believed and still believe that the election was unfair. Others may have joined that mistaken belief, while still others may have their doubts.
I know of no evidence that Trump himself ever questioned his certainty that the election was stolen, but it is possible that prosecutors could provide testimony that other defendants had expressed doubts, or even admitted that the election was not stolen. This diversity of viewpoints can create problems for the prosecution, as well as for the judge who must instruct the jury on the law that applies to each defendant.
Even when RICO and conspiracy are charged, individual guilt must be proven beyond reasonable doubt. United States law does not recognize guilt by association. Each defendant must have the requisite intent, and that intent must in any case be proven beyond reasonable doubt.
Some courts have been sloppy in applying the intent requirement to RICO and conspiracy prosecutions, but the Supreme Court has never wavered from the requirement that individual guilt must be proven beyond a reasonable doubt.
Since there are 19 defendants, this process will take an enormous amount of time. Some defendants choose to take the witness stand, others do not. Some may move for separate trials, others may not. Lawyers will argue with each other about certain rulings that may benefit some defendants but not others. A trial of 19 defendants guarantees a logistical mess.
Trial efforts will be made to move the case to federal court on behalf of some defendants, but not others. Attempts may also be made to change the case location to another Georgia county, even if it remains in state court. There will be disagreement over trial dates because the 40 or more attorneys likely to be involved in this case will have different trial schedules.
Justice must not only be done, it must be done. Especially when the main defendant is also the main candidate against the incumbent president. While this is a state case rather than a federal one, it is being brought by a highly politicized Democrat who clearly wants to serve the best interests of her party and her preferred candidate. At this point, it looks like Trump will have to take fingerprints and provide a mugshot (the inevitable T-shirt with the mugshot photo will probably be one of the bestsellers of all time!) The prosecution seems to be trying to milk this plea for any party advantage she can obtain, both for herself and for her party.
An important issue will be whether motions can be introduced which, if rejected, can be immediately appealed. Such an appeal would likely delay any process, possibly beyond Election Day. The law varies from state to state regarding the immediate appealability of certain motions, but the motion to move the case to federal court is almost certainly subject to appeal. The current indictment on the face of it seems strong: it tells a sad story of charges of corruption, perjury and misdemeanor. But as the prosecution reminded her audience, all of these defendants are presumed innocent. We must await the presentation of evidence and the cross-examination of witnesses to assess the actual strength of the case. I predict that the case will become weaker and more open to challenge as the trial progresses.
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