How To Think About The New Georgia Charges

Fulton County, Georgia District Attorney Fani Willis. Photo: Lynsey Weatherspoon for TIME

So, here we are again.

Late Monday night, District Attorney Fani Willis delivered the last, at least for the time being, of any major criminal indictments against Trump that might go to trial before next year’s presidential election. The Georgia grand jury’s indictment brings the case count to four and the number of felony criminal charges against the ex-president to 91.

It would be understandable if you felt your head spin, or even your eyes glaze over, at the news. Before Trump, the slightest hint of a presidential scandal could derail a candidate’s chances. Not so with the former president, whose popularity remains high, even commanding, within his own party. To the dismay of his primary challengers, his support within the GOP appears to solidify with each new indictment.

But it would be a mistake to dismiss the seriousness of the Georgia case and the legal jeopardy it presents for Trump and now many of his co-conspirators. There is a great deal of information within the 98 pages of the Georgia indictment, but for today I want to focus on some broader strokes and answer a few common questions.

1. How does the Georgia case differ from the federal January 6 case? Isn’t it basically the same case, but in a state court down South?

2. What does it mean that the indictment leads with a state RICO action? How do all the other alleged crimes and acts fit in?

3. Who is among the new defendants, and importantly who is not? Can we draw any conclusions from the list?

4. What will Trump’s main defenses be, and which moves will he likely trot out first?

5. What do we know about the trial judge assigned, the proposed time frame, and how it fits in with all the other cases and the election next year?

There are of course many other questions, but answering these five will put us in a good place to address others later.

So, first, a deep breath. I’m about to throw a bunch of information at you, but I hope to do it in a way that is accessible. I mainly want to offer some structure for how to conceptualize all the charges, alleged criminal acts, and the broader conspiracy and criminal enterprise that Fani Willis has laid out. Once you see how they all relate, it’s much easier to understand how the case will proceed. And you’ll probably start to agree with me that Trump and his co-defendants are in a heap of trouble.

Let’s get to it.

How does the Georgia case differ from the federal January 6 case? Isn’t it basically the same case, but in a state court down South?

Jack Smith’s federal January 6 case names only Trump as a defendant. It alleges three criminal conspiracies to overturn the 2020 election results and one overt attempt at obstructing Congress during the electoral count. Rather than charging any co-defendants, it leaves Trump’s co-conspirators unnamed, narrowing the lens to just the former president in a clear attempt to streamline the case so it can go to trial quickly. Smith has asked for a January 2, 2024 trial date—less than five months from now.

Fani Willis has taken a radically different approach. She has named 18 other defendants, too, in a wide-ranging indictment that leads with a RICO charge. As I discussed in my piece yesterday, Georgia state RICO law is far broader and better for prosecutors than the federal RICO law because it allows them to connect different crimes into a pattern of racketeering, all with a single criminal goal in mind, and to sweep up anyone involved in a broad “whirlpool” of criminality. Here, that criminal goal, as the indictment states in its introduction, was “to unlawfully change the outcome of the election in favor of Trump” in Georgia.

Because both the federal case and the Georgia case involve alleged criminal efforts to overturn the election results, there is significant overlap in the facts they allege. Everything that Trump and his cronies did to pressure state officials in Georgia to try and illegally flip that state’s electoral votes is relevant to the federal case as well. That’s why much of the Georgia indictment sounds familiar; we’ve seen it alleged or referred to in Jack Smith’s case already.

But there are some things that the Georgia defendants did in that state that are specific to the Georgia indictment. Notable among these were attempts by Trump Campaign officials to illegally pressure election worker Ruby Freeman to sign a false statement and to conspire with local officials to breach voting systems in Coffee County, Georgia, in a bizarre attempt to prove their false election claims.

As I’ll explain below, because these crimes are part of a larger effort to unlawfully change the election results, they wind up mattering a great deal under Georgia’s broad RICO law.

A few other items to note. Unlike the federal case, the state case in Georgia will be televised. The real-time unfolding of the proceedings, with live testimony (from witnesses who are nearly all Republicans), will bring the story into the living rooms of millions of Americans. That raises the stakes considerably.

And as I discussed briefly yesterday, the fact that this is primarily a state RICO action means that, if convicted, Trump will be sentenced to a minimum of five years (unless by some chance the judge decides to only impose a fine or reduces the sentence using his discretion). Under current Georgia law, there is no immediate pardon that can be offered to him or to any other defendant convicted in the case. Because of this, Trump will be very keen to seek to delay the trial until after the election so that he can argue he is immune from prosecution while serving as president.

What does it mean that the indictment leads with a state RICO action? How do all the other alleged crimes and acts fit in?

For a quick primer on RICO, take a look at my piece yesterday, which discussed the elements of a state RICO charge in Georgia. I used the analogy of a “whirlpool” to describe how the law could pull all manner of things in.

Think of the whirlpool as all of the ways in which Trump and his allies sought to “unlawfully change the outcome of the election” in Georgia, as the indictment alleges right at the outset. If Willis can prove that there were at least two “predicate crimes” committed to get that whirlpool spinning, then she gets to deploy the whirlpool’s broad reach to prosecute anyone within its ambit, from outlying foot soldiers to the boss at the very center.

As the New York Times explained, 

The indictment laid out eight ways the defendants were accused of obstructing the election: by lying to the Georgia state legislature, lying to state officials, creating fake pro-Trump electors, harassing election workers, soliciting Justice Department officials, soliciting Vice President Mike Pence, breaching voting machines and engaging in a cover-up.

Within these eight ways they obstructed the election, there are, by one count, 34 distinctly alleged predicate crimes. If Willis can prove just two of those crimes, and that these were part of a broader group effort to illegally change the outcome of the election, then she will have successfully set the RICO whirlpool spinning. And anyone who worked in any way to advance the illegal goal will get sucked into it.

Note that RICO is not the same as conspiracy. RICO is far easier to prove, at least in Georgia.

A criminal conspiracy requires the alleged co-conspirators to have formulated some kind of agreement—a plan with an illegal goal—to be carried out. To be liable, each defendant needs to have agreed to the plan, and then someone in the conspiracy has to have taken at least one “overt act” in furtherance of the plan.

That’s a higher bar than RICO, which doesn’t require people to have sat down over spaghetti to hash out a plan. But in the indictment, Willis has charged multiple conspiracies as well, meaning she feels confident that she can also get convictions on them.

Notably, to back up the conspiracy charges and to help prove her RICO case, Willis has alleged 161 separate acts that were taken to further the conspiracy. (As discussed above, 34 of those acts comprise predicate crimes for purposes of RICO.)

And here’s a key point: Not all the acts have to be illegal by themselves. They just have to have furthered the plan. For example, if you conspire with your friends to defraud a bunch of elderly people, and then you put an ad in the paper asking for volunteers over the age of 65, that’s a criminal conspiracy—one that you took a step in furtherance of by placing the innocuous seeming ad. 

And that highlights the thing the GOP and Trump get so wrong. The ad itself isn’t the crime. If you didn’t have the illegal plan in mind, your free speech rights would allow you to place that ad, no problem. The issue is, you placed the ad, you said those words, in order to advance a criminal conspiracy.

No amount of education or discussion is going to get those loyal to the ex-president to see the difference, because they simply don’t want to see it. But I hope you can spot the difference easily now and help convince the persuadable center that what Trump and his cronies did was a criminal conspiracy. Specifically, all his tweets and outrageous lies about the election, though by themselves not illegal on their own, were acts in furtherance of a criminal plan and therefore count toward the conspiracy.

Who is among the new defendants, and importantly who is not? Can we draw any conclusions from the list?

The defendants listed in the indictment include some household names, some expected local defendants and some surprises. 

Donald Trump, of course, is the main event. According to legal expert and Supreme Court lawyer Neal Katyal, Trump’s name appears 193 times in the indictment, and “the charges go out of the way to show Trump directly violated the law.” And by now, we are familiar with pretty much everything that Trump is alleged to have done.

Most legal experts anticipated and thus were not surprised by seeing names like Rudy Giuliani, John Eastman, Jeffrey Clark, Sidney Powell and Kenneth Chesebro in the new Georgia indictment. These are also the five unnamed co-conspirators in the federal January 6 case in D.C.

Those of us a bit more in the weeds on the state level shenanigans in Georgia were gratified to see certain state officials make the list. These were individuals who participated in the fake electors scheme but didn’t take immunity deals from Willis. They include GOP chairman David Shafer, former GOP finance chairman Shawn Still, and Cathy Latham of Coffee County. Local Georgia Trump campaign lawyers Ray S. Smith III and Robert Cheeley, as well as Trump’s director of Election Day operations, Michael Roman, round out that group.

I was personally happy to see the names Stephen Cliffgard Lee, Harrison Floyd and Trevian Kutti among the indicted defendants. These were individuals who harassed election worker Ruby Freeman at her home and conspired to coerce her into falsely admitting she had committed election fraud. You can read my write up on that rather creepy and infuriating incident here.

And if you’ve been following the saga of the Coffee County, Georgia election office breach, the names Misty Hampton and Scott Hall, along with Cathy Latham, would be familiar. There is now evidence, reported by CNN over the weekend, linking efforts to illegally access and copy software code from Coffee County election machines to top-down orders from the Trump campaign itself.

There were some surprises on the list, too. The two biggest were Mark Meadows, who was Trump’s former chief of staff, and Jenna Ellis, who worked with Rudy Giuliani and helped spread election lies. Their inclusion implies that neither is cooperating with prosecutors in Georgia, even though it is widely suspected that they may be cooperating with Jack Smith’s office in D.C. I presume neither Meadows nor Ellis wants to get swept up in the RICO whirlpool in Georgia, but both are now charged with one very dangerous RICO count. And both have to be careful that what they might say to a jury in D.C. doesn’t land them in big trouble down in Georgia.

Notably absent from the list are some top level Trump allies, including Steve Bannon, Roger Stone, Boris Epshteyn, Lin Wood and Michael Flynn. Epshteyn, who is a close advisor to Trump, is widely considered a good candidate to be the unnamed co-conspirator No. 6 in the D.C. case, so his absence from the defendants’ list in Georgia is curious. As for Bannon, Stone, Wood and Flynn, prosecutors may be holding their fire for reasons we don’t yet understand. Are they cooperating? Do prosecutors hope they will flip on each other? Or are they just lucky so far? We will have to see. 

It’s clear that Stone and Bannon were deeply involved with the planning of the Stop the Steal efforts and were witnesses to Trump’s foreknowledge and plan to falsely claim election fraud, hatched long before votes in the 2020 election were ever cast. And Wood and Flynn were busy spreading many of the same false election claims that others on “Team Crazy” were amplifying. Notably, Flynn was present and a witness to key meetings, including a pivotal one on December 18, 2020 at the White House where some in attendance, including Flynn, proposed that voting machines be seized.

It is worth noting that the Georgia indictment uses the phrase “unindicted co-conspirator” at least 89 times, according to legal analyst and commentator Joyce Vance. “Fani Willis may have some important cooperating witnesses,” Vance noted. By my count, there are some 30 people who are considered “unindicted co-conspirators” by the state of Georgia.

That’s something to consider if you are one of the named defendants. Now that the list is public, there is a strong incentive for anyone on it besides Trump to cooperate with authorities in order to secure an early, favorable deal and not get swept up in the RICO whirlpool, for which there is a mandatory five-year prison sentence. Many of these defendants don’t have the financial resources that Trump has, so it will also be very costly for them to defend themselves. They ultimately will have to weigh their loyalty to Trump and the MAGA movement against the prospect of a long prison sentence away from their friends and families.

The defendants may want to check Willis’s track record, too. In an earlier RICO case, Willis charged 35 administrators and educators in a wide-ranging cheating scam. Most of the defendants pled guilty and cooperated before trial. Among the 12 remaining defendants, Willis obtained 11 guilty verdicts.

What will Trump’s main defenses be, and which moves will he likely trot out first?

Aside from attacking the integrity of judges and prosecutors and seeking to intimidate witnesses—a practice the judges on all of Trump’s charges are seeking to limit through warnings, sanctions and possible revocation of his pre-trial release—Trump will likely fall back on the same defenses he has signaled in his federal January 6 case: free speech, advice of counsel, and lack of criminal intent because of his “sincere belief” that the election was stolen.

My earlier pieces addressed the weaknesses of these defenses, and they will remain weak in Georgia, where once again the issue isn’t Trump’s free speech or his subjective belief in the righteousness of his cause, but rather his criminality in pursuing an illegal goal of changing the election outcome in the state.

But Trump has more than just his affirmative defenses that he can and will deploy. He has the weapon of time, manifested as delay. If he can prevent the trial from concluding with a guilty verdict prior to the 2024 presidential election, he has a shot at preventing the prosecution from proceeding while he is in office. This is a murky area of the law that remains untested for obvious historical reasons.

One clear way to delay the case, and perhaps to gain a better jury pool, is for Trump to file a motion to remove it to federal court, on the ground that he was acting in his official capacity as president with respect to the acts alleged. Here, the judge will have to distinguish between his actions as president and his actions as candidate Trump. Most of the actions he took, including that infamous call to Georgia Secretary of State Brad Raffensperger where he asked him to “find” 11,780 votes, were not made while acting as the president but rather as a candidate seeking to undo the election. Nor was his role in organizing fake slates of electors in the swing states in any way connected to his official duties.

For this reason, his expected removal motion is unlikely to succeed, according to most experts I have read. He has already lost a similar removal motion in Manhattan. But he could pull a judge favorable to him, and that could complicate matters. Further, the process of resolving the issue could at minimum cause delay as the question gets litigated and appealed.

What do we know about the trial judge assigned, the proposed time frame, and how it fits in with all the other cases and the election next year?

In Georgia, cases get assigned randomly by computer, and Trump’s case got assigned to Superior Court Judge Scott McAfee. Judge McAfee is a very new judge, having only been appointed by Governor Brian Kemp some seven months ago. However, he has fairly extensive experience as a prosecutor, first as an Assistant U.S. Attorney and then as an Assistant District Attorney. 

McAfee will be seeking reelection in Fulton County in 2024, so he is likely to play this all by the book. I would further venture that he would prefer not to face the election while known as the judge who allowed Trump to delay his trial so long as to escape accountability. Judge McAfee will also have to find a way to deal with Trump’s outbursts, attacks, threats and sullying of the jury pool. Through all this, the nation’s eyes, and the eyes of the voters in his county, will be upon him, television cameras rolling.

Fani Willis has asked that the case begin in six months. She’s indicating by this that she’s ready to go, but there will be many obstacles to getting an early trial date. Chief among them will be delays caused by Trump’s motions, including his anticipated motion to remove the case to federal court, and fights over things like a protective order and how all the schedules for every other defendant and their lawyers, along with their own motions and conflicts, pan out.

Then there is the consideration of other pending cases in D.C., Florida and New York. State prosecutors often agree to defer to federal cases when it comes to calendaring, and Manhattan DA Alvin Bragg has already indicated that his March 2024 trial date can yield if the time is needed for the federal cases. Willis has not stated whether she will yield her case calendar to the priorities of Jack Smith.

There is certainly a world in which Smith’s D.C. case goes first in January, followed by his Florida case in the spring, then by Willis’s in the early fall, before voting begins, should Trump, as expected, win the GOP nomination. By then, it’s possible Trump will be serving a prison sentence for one or all of those cases. Such is the upside-down world that awaits in 2024.

Trump and the other defendants have been ordered to report for arraignment no later than August 25, some 10 days from now. At that point we will begin to have some indication of how Trump’s experience with the court system in Fulton County is likely to go. Already, officials have indicated that he will be treated like any other defendant, including a mug shot that will be one for the history books.

As more information and analysis comes through on the Georgia case, I will continue to report on it, often in connection with parallel facts and evidence in the D.C. case. One thing is certain: Things are about to get rather complicated—legally, politically and temporally.

But as I like to remind readers here, a little clarity goes a long way in these crazy times.