How Serious Is the Fulton County Indictment of Trump?

AP Photo/Mary Altaffer

First of all, let me say that I am extremely upset at Fulton County DA Fani Willis. Not because of the indictment, but because I had to stay up so late reading it and trying to get my head around it. Very inconsiderate to run everything so late into the evening, and my poor coffee maker had to work overtime.

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Now that I've gotten the somewhat unserious complaints (but come on, really?) out of the way, I guess we need to discuss this new indictment a bit. Having read the full indictment document and as many takes as I can from people who are or were in law, it's clear that this isn't just another Alvin Bragg situation. Trump and his legal team do need to be concerned with this in a way they don't need to be with the New York case.

First, there's a reason to compare this with the New York case and not either of Jack Smith's cases. Trump is being charged with state crimes in both, rather than federal crimes in the case of Smith's indictments. That makes things a bit more problematic for Trump - he can't pardon himself or be pardoned by a Republican in either case.

Andrew McCarthy notes as much in the New York Post.

What should most concern Trump is that the Georgia case could be the most enduring of all the criminal indictments.

If Trump or another Republican were to win the 2024 election, the new president could issue a pardon or otherwise have their Justice Department drop Smith’s federal indictments against Trump. 

Indeed, that is why Smith is pushing so hard to get the federal courts in Washington and Florida to accelerate the schedule and get the cases to trial in the next few months — before Election Day 2024.

Presidents, however, have no authority to pardon state crimes.

It remains to be seen whether Wills can convince a jury of Atlantans to convict Trump. But even a newly elected President Trump could not make the Georgia prosecution go away.

If he were convicted, it would stick.

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But even more than that, it's the fact that Georgia's RICO law is extremely broad, and it allows for the Fulton County DA to bring a whole hell of a lot of charges under that umbrella. While Bragg did the same thing in New York, Willis is not stretching the case as thin as Bragg did in order to make the charges work. The RICO law makes it possible to do so without weakening the case too much.

That poses a more substantial problem for Trump. Willis is claiming that Trump was planning to call the election stolen from the jump, regardless of the actual facts. That is where the conspiracy starts. And it's not that Trump directly did the things that the indictment is charging him with, but rather the people who did it were doing so to advance his criminal conspiracy, making him culpable under the RICO statute. That's makes it a lot harder for Trump to dismiss, as there appears to be witnesses who testified (or will testify) that Trump knew the results were legit all along.

Part of the problem for Willis, however, is that some of what she is doing is a stretch, and notably so. One of the claims is that Trump tweeted about the Georgia hearings on OANN. Willis isn't saying it's a crime to tweet, but she is arguing that the tweet furthers an existing crime, which is sort of ridiculous.

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But it also looks like Willis also has to go out of her way to re-litigate the Georgia election issues that Trump has raised. And bringing it all up again could be a double-edged sword - it might be enough to raise doubt in any of the jurors on the case.

She also has to prove that Trump didn't think the election was stolen, which might be quite the uphill battle. If Trump is able to convince jurors that he was following the advice of lawyers and really did believe that the election was stolen, that's a blow to the DA's case that she can't recover from. The entire premise of the indictment is that Trump was planning before Election Day to claim the election was stolen, and suggesting that this fact is enough to prove he intended to steal the election in Georgia regardless of what happened. 

If she can't prove that, then nothing else sticks. If Trump says he was led to believe that because of what these lawyers and activists in his inner circle convinced him that was going to happen, the case is weaker. He, in his defense, will make himself out to be a person attempting to stop fraud.

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The most problematic case for Trump remains the Mar-a-Lago case. He is accused of ignoring subpoenas and attempting to hide evidence. It has nothing to do with his state of mind regarding the election. He (allegedly) willfully ignored a grand jury. But this case is different it's serious - far more so than the New York case - but is still a much tougher sell to a jury. 

But, if he's found guilty, it will stick in ways the Mar-a-Lago case won't.

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