Has everyone waited politely
As far as you know.
How in the world does this go to trial with 18 defendants? Is it possible to keep cameras out of a Georgia courtroom or is this definitely being televised? Any lawyers who can explain why they went RICO? (Ken White's take on (federal) RICO is that it's not worth the complexity if you can charge simple conspiracy. What's the material difference of GA law here?)
Is Jack Smith pleased with or annoyed by this development?
Is Trump going to get indicted for witness intimidation before the trial?
2 IANAGL, but from reading around, Georgia RICO sounds like it's more like the federal conspiracy statute than like federal RICO, in critical ways anyway.
Cases often go to trial smaller and leaner than they start.
It seems like this one is destined to be televised. It probably won't be very compelling TV, but 'everyone' will be watching . . .
What I wonder is how they'll schedule this one. After the J6 trial?
2: I have heard, as a start that the Georgia RICO statute is one of the most expansive in the country.
With 18 defendants apart from Trump, it seems guaranteed at least one flips. Maybe many.
Mark Meadows testified to the J6 committee, right? He seems a good high-level candidate. (He may already have flipped to Smith.)
No one's going to have a solid answer on what difference Georgia law makes except an experienced Georgia lawyer. It's not going to depend just on the words of the statute, but on the whole history of what Georgia courts have done with it.
Willis said in the press conference that this is the 11th RICO prosecution since she's been DA and some MSNBC commentators pointed out that she also prosecuted RICO cases before she became DA. But they didn't say a whole lot about how those cases turned out.
It was kind of fun to watch the tv coverage because you tell people were refreshing the court website and then trying to skim the indictment on their phones while being obligated to keep talking.
How many states of practice do we have covered here on the Shaft? Should we consider moderating our views on social issues to appeal to more Southern lawyer commenters?
We had an NC Prosecutor who might still be lurking.
Shaft is a private detective, not a prosecutor.
9: This is entertainingly completely ambiguous.
Copilot doubles your entendres without you even noticing!
2: Convictions under GA's RICO statute carry mandatory jail sentences, and the governor's pardon power in GA can't be exercised until after the sentence has been served. This is to get people to make deals, one suspects.
9 reminds me that my dad always refused to have his LLB changed into a JD because he didn't have a bachelors degree otherwise.
"I'm not a lawyer but I did shop at an L.L. Bean last night."
the governor's pardon power in GA can't be exercised until after the sentence has been served
I believe it's the State Board or Pardons and Paroles (governor-appointed) that can't pardon until after sentence - plus any probation or parole.
This is to get people to make deals, one suspects.
Constitution was changed in 1943 after their Klansman governor was indicted for selling pardons and other corruption.
Obviously, they knew they were still going to elect klansmen.
So the New York case will stay in the New York court. What are the odds that the Georgia case will stay in the Georgia court? (The NYT did the one-expert-says-this-and-another-says-that thing.
23: Do you mean change of venue, or what?
Trump is going to prove the election was stolen on Monday, so that will take care of things.
A broader question: if January 6th had not happened, would the fake electors scheme have languished in obscurity?
24: The question was intended to be about whether the case would end up in federal court.
Why would it end up in federal court? It's about state laws. Plus everyone's excited that he wouldn't be able to pardon himself.
Because his hand might get pregnant.
That's because he's getting fingered.
I think there are a number of cases when a state case can move to federal court, but the details are for lawyers to relate.
Here's someone saying it's unlikely to prevail. Such a motion was just rejected in the New York case.
27: Yes, I would think so. As long as it was a weird idea of no consequence nobody was going to bother themselves about it. There's such a fine line between constitutional hardball and conspiracy to obstruct an official proceeding.
26: Der Angriff Steiners wird das alles in Ordnung bringen.
Hey I was just at a display in Berlin that mentioned Downfall and I thought of the "I got that reference" DiCaprio meme.
37: That's an interesting meme fusion. Do you mean the one with him sitting and pointing? (It is indeed used that way, and probably much more popularly than the Avengers scene the line comes from.)
12: IANAL but I'm in the Charlotte airport right now.
Will Georgia leg shitcan Willis in a few months under their new expedited law? Not sure, there seem to be more GA republican officials who are truly pissed at Trump than the other swing states.
Overall, I think all this judicial stuff comes to little in the end other than some exposure. There is a huge political problem in the country and it will require a political solution. A sobered Republican party impeaching in 2021 would have been a great start but we are not in that timeline.
A criminal case can be removed from state to federal court if the criminal conduct was by an officer fo the U.S., and the officer was acting under "color of office" during the alleged criminal act. Commonly used by post office employees prosecuted for drunk driving in post office trucks. Seems unlikely here, since Trump's criminal acts were in his capacity as a candidate, not as president, but who knows. Some of the other defendants who worked for the government, but not officially for the campaign, might have a better argument. Worth trying if only to make some delay.
Same law applies, state prosecutors still handle the case, differnt different judge and court building. The jury pool would come from a 10 county region instead of just Fulton County, and procedure woudl be different, not clear who benefits. No TV cameras in federal court.
This is all footnotes to the Brooks Brothers riot...
23/24/29/33: The issue is whether the federal officer removal statute would allow Trump to have the case heard in federal court. I know zero about that statute, but the fact that he couldn't remove the New York case doesn't mean much. Would turn (at least in part) on whether he could convince a judge that he was acting within his office. That sounds pretty dumb re the GA charges (he'd presumably have to argue that he was just executing his constitutional duty to ensure the purity of the electoral process or something like that), but obviously a complete non-starter re the NY business-records charges.
The fake electors might not have gotten attention if they hadn't stormed the Capitol but it's hard to see the former without the latter. The only way to install the fake electors was to interrupt the proceedings, and there wasn't much point in creating the alternate slates without that goal.
I guess if people got cold feet and they decided not to obstruct, then there probably wouldn't be a prosecution. If they'd obstructed "peacefully" with Pence and enough Republicans in Congress going along, then maybe there'd still be a prosecution because we'd have seen the shape of the coup more clearly. Unless they'd won, of course. Then we might be celebrating January 6th as the new American independence day, the first compulsory holiday in US history.
I do think it was absolutely necessary and good that these various cases were pursued, am just sanguine about any meaningful positive results. Would love to be wrong.
38- That's the one, although I don't even know what movie it's from, just as I've only ever seen That Scene from Downfall. I have actually watched the original not just the many parodies.
Surely have the guardrails somewhere ambiguously between the Brooks Brothers riot and Jan 6 is an improvement? If Trump wins in 2024, all bets are off. It will be, um, interesting to see how things go differently if he loses. He seems completely temperamentally incapable of conceding defeat, but how far will he be able to push it under the circumstances?
Maybe they'll storm whichever prison they call the American Bastille (while earnestly arguing that the French monarchy was right).
Update: Mark Meadows has removed hsi case to federal court. Within a month or so the federal judge will decide whether to keep it or send back to state court. He was Trump's Chief of Staff, his whole job was arranging meetings and talking to people on behalf of Trump, so he has the sdtongest case that his indictment is for actions connected to his federal employment. He drew Judge Steve C. Jomes, a former state court judge promoted by Obama.
Clark and Chesebro were also federal employees, maybe others.
Judge McAfee, in Fulton County, is a fresh-faced (and freshly appointed) 34-year-old. I can't even picture what the courtroom scene is going to look like if the case stays with him.
50: I lost there something about the process I don't understand, surely he has just moved to remove his case. It hasn't happened yet: in my priors judges only rule on motions the same day they are filed in the direst of circumstances.
Yes, it's just a motion:
To get all lawyerly, Meadows' case is now if federal court. He filed a Notice of removal, not a motion for removal. The prosecutor can file a motion to remand, and then the judge rules whether to remand to the state court. Filing the Notice in federal court deprives the state court of jurisdiction.
Document:
https://storage.courtlistener.com/recap/gov.uscourts.gand.319225/gov.uscourts.gand.319225.1.0.pdf
Right. Unimaginative probably made it clear, but removal happens instantly when the party who wants removal files the notice. If there's disagreement about whether it should have been removed, that gets worked out in the context of a motion for remand to state court. Nothing else I can think of works that way.
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Also since the 1990s the Balkans have changed utterly. Wars ended, Bulgaria, Romania, Hungary, etc in the EU, and Yugoslav and Albanian criminal nets all over Europe. Obviously more relevant for ME, but has to matter to Africans as well.
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55: turns out it's different in the criminal context (which surprised me, but I guess shouldn't have). It's true of course that he filed a notice of removal rather than a motion, but in a criminal case that doesn't deprive the state court of jurisdiction. The statue (28 U.S.C. ยง 1455) specifically allows the state court to proceed (except to the point of entering a judgment of conviction), until the federal district court holds an evidentiary hearing and decides to permit removal.
I guess we know the judge in Georgia is relatively new and presumably is a Republican. Do we know anything else?
Musician (cello in college).
Outside of the courtroom, he is also a volunteer scuba instructor at the Georgia Aquarium and captain of his tennis team.
I've been to that aquarium. All the fish dive very well. So he must know what he is doing.
captain of his tennis team
One of the more egregious examples of the top-heavy command structures typical of authoritarian security forces.
58: Hah. I should not opine about anything in criminal cases unless I've looked it up.
I opine about stuff I know nothing about. It's never been a problem here.
Right. Don't go changing the rules on us now.
Ken White's podcast on the Atlanta indictments was interesting. He thinks compared to the Smith indictment, there is some overreach in the indictments, reflective of the culture of DAs who are often not really held to account when they shoot for the fences / color outside the lines.
We know that all the "overt acts" to show the conspiracy/racketeering don't have to be crimes in themselves, so it's wrong to say it was criminalizing tweets, but on page 16 of the indictment, the actual charge for "false statements to and solicitation of state legislatures" specifically says it was criminal to advocate to the state legislature, at public hearings, that they should change the state winner because of fraud. That's morally wrong, but would it be unlawful if the Legislature did it, or just passing a bad law? No legislature binds its successor, after all. (Maybe not even federally illegal prior to the recent Electoral Count Act rewrite that binds states to determine winners by their pre-election laws.) And even if it were against the Georgia Constitution or something, should it be a crime to advocate unconstitutional legislation?
Apparently Georgia RICO is not only particularly aggressive, but not well laid out in court - he had a Georgia appellate lawyer as a guest who confirmed the case law has never even specified what elements a jury has to find for a RICO conviction, it's always been seat-of-the-pants. He gave the context that this DA, Fani Willis, is the same one who made a successful RICO case against teachers helping students cheat on standardized tests - morally dubious even at the time as they hadn't been paid for it or anything. Also another against court reporters who, paid by the page, had conspired to pad margins (I haven't found an article on this). The law has probably persisted without a good judicial implementation because the cases tend to be long, complicated, and expensive, and the state-level defendants will tend not to afford good lawyers to pick the structure apart.
So, pretty messy.
I can't wait to find out all the injustices of current law and all the defenses available to wealthy and well-connected defendants, that everyone should get, that will promptly not be institutionalized for everyone once the wealthy and well-connected slide through in their specific case.
Obviously I don't know Georgia law, but I thought the crime was lying to the legislature to induce it to take action, not trying to make the legislature pass an illegal law (which, as you say, is kind of an incoherent concept). So I don't see the problem with "telling lies to the legislature about electoral fraud having taken place" as a RICO predicate act -- am I missing something?
68: Yes, it's not being framed as a RICO predicate act, but as a crime in itself. Look at page 16 - it's not one of their over 100 paragraphs ending with "This was an overt act in furtherance of the conspiracy."
Actually 69 might be wrong, I'm a little unclear what is being presented as predicates / overt acts vs. crimes. At a certain point that phrase became rote but maybe it's not required.
OK, ignore page 16. I think they were referencing page 72, count 2 of 45: several defendants "solicited, requested, and importuned... members of the Georgia Senate present at a Senate Judiciary subcommittee meeting... to engage in conduct constituting the felony offense of Violation of Oath of Public Officer, OCGA 16-10-1, by unlawfully appointing presidential electors from the State of Georga, in willful and intentional violation of the terms of the oath of said persons..."
So, once again, IANA GA L, but I kind of skimmed through your last comment without thinking about it too hard, and I shouldn't have gone along with "if the legislature passes it, it's not unlawful." State legislatures are bound by federal law and by their own state constitutions, and that wording is a (plausible to me) claim that an act of the legislature appointing false electors would have been unlawful either under federal law (the constitutional language requiring a republican form of government, maybe) or under the Georgia state constitution (which probably has something similar). Doesn't seem like overreach to me.
Republican-form-of-government seems a stretch considering it would also be republican in the US-constitutional sense for the electors to be picked entirely by the Legislature.
I agree if they can point to something in federal law or the state constitution that could work. We'll see if they do.
Your first paragraph there does not seem to me to be uncontroversially true.
Theoretically I could imagine someone saying "it would be republican to have it be the law that the Legislature pick electors, but changing the law after people have voted under a law saying the electoral outcome hinges on the popular vote is contrary to republicanism." But again, that seems a stretch.
Yeah, it doesn't seem like a stretch to me at all.
44
I do think it was absolutely necessary and good that these various cases were pursued, am just sanguine about any meaningful positive results. Would love to be wrong.
Eh, in the long term, everything sucks. Fascism aside, I don't see a path to an adequate global response to climate change. But in the more short term, American-politics-focused perspective, everything has to go right for Trump from this point on for him to have a good year or two ahead of him. 91 charges in 3 (or is it four?) different jurisdictions is a lot. Committed Republicans will remain loyal to him but there's absolutely no way this helps him with all the voters open to persuasion, or at least open to sitting out the election. That's not to say he can't still win in 2024 if there's a sharp economic downturn or something but this makes it a lot less likely.
In 2020 I worried about Trump. In 2022 I worried about DeSantis (but he seems to be getting what he deserves right now). In 2024 I'll worry about whoever comes after Trump (or, like I said, Trump himself if the jobs numbers are bad). But for now, can't we just enjoy the schadenfreude?
NPR/PBS NewsHour/Marist poll, March 20-23, 2023, Trump has done something illegal / has done something unethical not illegal / has done nothing wrong:
Independents: 41 / 33 / 24
Republicans: 10 / 43 / 45
Same question, same pollster, August 10-14:
Independents: 50 / 29 / 19
Republicans: 9 / 43 / 44
MOE 3.6. So Republicans may not be shifting, but independents are!
(I couldn't find any other overlapping questions between the two polls, annoyingly.)
71: I'm with Minivet on this one. "Solicited, requested, and importuned... members of the Georgia Senate present at a Senate Judiciary subcommittee meeting" is lobbying, a constitutionally protected activity.
I can't imagine a successful crimminal prosecution for lobbying the state legislature to pass legislation that is unconstitutional. Lots of laws are found to be unconstitutional. E.g. lobbyists for antipoverty organizations "importuned" in favor of the part of Obamacare that set a coercively high penalty on states that declined to participate. The provision passed, arguably due to their lobbying, but the Supreme Court ruled it was unconstitutional, so that part never went into effect. The lobbyists for the NAACP, Childrens Defense Fund, etc., can't be prosecuted for their advocacy. Even if there was a false statement in their powerpoints, they can't be prosecuted unless they were testifying under oath.
It makes sense that a jury of your peers approving indictments should make you more likely to think he committed crimes. I'd expect that if he's convicted those numbers will go up further. Perhaps in part because more info will be made public during the trial, but also because most people just think if you're guilty you'll be convicted and if you're not guilty you won't.
78: Would also be helpful to know how many people shifted their reported affiliation from Republican to Independent between the two polls. As "Republican" edges closer to just meaning "hell yes I'm on board with all the crazy," asking people who identify as Republican how they feel about crazy stops being meaningful.
81: Ah, yes. Surprisingly, it seems to have gone the other way?
April: 37% D, 29% R, 33% I
August: 37% D, 31% R, 31% I
81-84: that's within the margin of error. Don't get me wrong, it's disappointing that Republican self-identification hasn't cratered (but then again, maybe it's already at a low point? We can hope!), but I wouldn't say it has gone up.
Trump has publicized the jurors' names. It's very clear how he's going to try to win this.
79. Morally (I'm not a lawyer), I think lobbying to overturn an election is completely different than other lobbying, since it's attacking the core of democracy, and I'm fine with treating it as a crime.
Then my brother would know two justices.
Correction: Fani Willis did not prosecute the court reporters, that was a DA in Cobb County as opposed to Fulton. It was under Georgia RICO though.