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Probable cause vs. proof beyond a reasonable doubt
This is a good moment to remember that there is a large gulf between probable cause and proof beyond a reasonable doubt.
The grand jury has concluded that there is probable cause that Trump committed the crimes alleged in the indictment. That means that the members of the grand jury believed it more likely than not that Trump engaged in criminal behavior. Phrased another way, the grand jury concluded that there is more evidence for these charges than there is against them.
But for the jurors to conclude at the end of trial that Trump is guilty of a charge, they must be satisfied that the prosecution proved its case beyond a reasonable doubt. In Georgia, jurors can be specifically asked whether there is enough evidence to “satisfy the mind and conscience beyond a reasonable doubt.”
For any prosecutor, there is a long road between an indictment and a conviction, and this case is no different. Here, the prosecution will rely on a fairly novel use of the RICO, or racketeering, statute. There is plenty of work left for them to do.
Remember, Fani Willis knows her way around RICO
Andrew Weissman was just on MSNBC talking about the complexity of cases involving several co-defendants being charged together, as Fani Willis said she intends to do with the 19 co-defendants charged in her 2020 election case. That reminded me of a post I wrote almost a year ago to the day, noting that Willis’ RICO case against rapper Young Thug and his crew, YSL, would give her a bit of practice trying more than a dozen co-defendants on the same charge. In the YSL case, there were reportedly 28 co-defendants at one point.
I continue to think the YSL case in Fulton County is instructional for anyone who wants to see how a Trump RICO case might play out.
Fani’s revealing FAQ
After announcing a 41-count indictment that includes Trump and 18 others, the Fulton County district attorney answered reporters’ questions about whether a person convicted using Georgia’s RICO statute could avoid prison time and whether, as Trump says, she’s politically motivated against him.
“I make decisions in this office based on the facts and the law,” Willis told reporters. “The law is completely nonpartisan. That’s how decisions are made in every case. To date, this office has indicted, since I’ve been sitting as the district attorney, over 12,000 cases. This is the 11th RICO indictment. We followed the same process. We look at the facts. We look at the law, and we bring charges.”
The prosecutor’s other answers were revealing as well.
Asked whether defendants could avoid jail if convicted, Willis noted that a RICO conviction would not lead to probation, and would result in prison time.
Asked when she would like the fairly complicated trial to begin, Willis set the ambitious goal of a start date “within the next six months.”
She also expressed her desire to try all 19 defendants together.
The 19 defendants in the Fulton County indictment
While Trump’s three other criminal indictments this year have named only him, or him and a couple of co-defendants, his latest indictment names 19 defendants. They are:
- Donald Trump, former president of the United States
- Rudy Giuliani, former personal lawyer for Trump
- Mark Meadows, former White House chief of staff
- John Eastman, former personal attorney for Trump
- Kenneth Chesebro, pro-Trump lawyer
- Jeffrey Clark, former acting assistant attorney general for the Justice Department’s Civil Division
- Jenna Ellis, lawyer for the Trump campaign
- Ray Smith III, lawyer who represented Trump during litigation attempting to overturn Georgia’s result in 2020
- Robert Cheeley, lawyer involved in litigation related to the 2020 election
- Michael Roman, Trump campaign adviser
- David Shafer, “fake elector” and current chair of the Georgia Republican Party
- Shawn Still, “fake elector” and Republican Georgia state senator
- Stephen C. Lee, pastor
- Harrison Floyd, former leader of “Black Voices for Trump”
- Trevian Kutti, publicist (Kutti, Floyd and Lee are implicated in efforts to intimidate election workers.)
- Sidney Powell, lawyer and Trump ally
- Cathy Latham, “fake elector” and former chair of the Coffee County Republican Party
- Misty Hampton, former election supervisor of Coffee County
- Scott Hall, Trump supporter and business owner (Powell, Latham, Hampton and Hall allegedly participated in the “unlawful breach” of election equipment in Coffee County.)
Capone: ‘Some call it racketeering. I call it a business.’
Here’s how Trump’s ‘fake electors’ plot fit into Willis’ indictment
Of the 41 counts contained within this massive indictment, more than a dozen of them go back to a plot to replace Georgia’s 16 members of the Electoral College with a slate of alternates. The idea was that those “fake electors” would cast votes for Trump instead of Joe Biden. Those votes would either throw the election for the then-president on Jan. 6 or cause enough confusion to have GOP-controlled state legislatures decide Trump actually won.
It’s a wildly complicated plot, one that got three of the “fake electors” themselves charged in the sprawling case. Luckily, I’ve gone ahead and laid out the whole thing — including how it came about and why it’s so central to the overall scheme — in this article.
The clock has started for defendants to turn themselves in
Willis, speaking to the press just now, said that warrants have been issued for all of the defendants in tonight’s indictment to be taken into custody. She then said that the 19 defendants, including Trump, have until noon on Friday on Aug. 25 to turn themselves in.
Some charges are related to the effort to intimidate Ruby Freeman
This indictment reveals the charges related to an incident that Rachel Maddow has spoken about a couple of times tonight: the effort to pressure former election worker Ruby Freeman into a false confession that she committed election fraud and effectively cheated Trump out of an election win in Georgia.
As Rachel mentioned, Trevian Kutti, a publicist who previously worked for Kanye West, is alleged to have played a large role in that pressure campaign, which you can read about in this Reuters report.
The indictment charges Kutti and two men — Stephen Lee and Harrison Floyd — with solicitation of false statements and writings for allegedly pushing Freeman to “knowingly and willfully” make false statements about her election work at State Farm Arena on Nov. 3, 2020 (the night of the election). And it charges Kutti, Lee and Floyd with influencing witnesses for allegedly attempting to convince Freeman that she needed their protection with the intent “to influence her official testimony in an official proceeding.”
The indictment says these crimes were “an overt act in furtherance of the conspiracy.”
Trump tried to humiliate Black women for years. Then one indicted him.
Monday was the fourth time this year that a prosecutor has persuaded a grand jury to indict former President Donald Trump of multiple crimes. This time, however, Fani Willis, the district attorney in Fulton County, Georgia, a Black woman, is in charge of the prosecution, and, given Trump’s history of hurling virulent insults at Black women, the fact that Willis is leading the latest effort to convict him must be especially infuriating for him.
Trump will likely hurl insults as he often does. But Willis has shown no signs of backing down, and she remains committed to sending the message that the rich and powerful are not immune from prosecution. Given everything he’s said about powerful Black women, her convicting him wouldn’t just be justice, it would also be poetic justice.
Trump as mob boss
The indictment says Trump and his co-conspirators “constituted a criminal organization whose members and associates engaged in various related criminal activities including, but not limited to, false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, conspiracy to defraud the state, acts involving theft, and perjury.”
The framing drives home how prosecutors are attempting to frame Trump’s behavior in Georgia not as careless transgression, but as part of an organized agenda advanced by a group of people with shared goals.
These are the 13 new counts facing Donald Trump
Count 1 — VIOLATION OF THE GEORGIA RICO (RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS) ACT O.C.G.A. 16-14-4(c)
Count 5 — SOLICITATION OF VIOLATION OF OATH BY PUBLIC OFFICER O.C.G.A. §§ 16-4-7 & 16-10-1
Count 9 — CONSPIRACY TO COMMIT INIPERSONATIN PUBLIC OFFICER O.C.G.A. §§ 16-4-8 & 16-10-23
Count 11 — CONSPIRACY To COMMIT FORGERY 1N THE FIRST DEGREE O.C.G.A §§ 16-4-8 & 16-9-1(b)
Count 13 — CONSPIRACY TO COMMIT FALSE STATEMENTS AND WRITINGS O.C.G.A. §§ 16-4-8 & 16-10-20
Count 15 — CONSPIRACY TO COMMIT FILING FALSE DOCUMENTS O.C.G.A §§ 16-4-8 & 16-10-20.1(b)(1)
Count 17 — CONSPIRACY TO COMMIT FORGERY IN THE FIRST DEGREE O.C.G.A §§ 16-4-8 & 16-9-1(b)
Count 19 — CONSPIRACY TO COMMIT FALSE STATEMENTS AND WRITINGS O.C.G.A §§ 16-4-8 & 16-10-20
Count 27 — FILING FALSE DOCUMENTS O.C.G.A §§ 16-10-20.1(b)(1)
Count 28 — SOLICITATION OF VIOLATION OF OATH BY PUBLIC OFFICER O.C.G.A §§ 16-4-7 & 16-10-1
Count 29 — FALSE STATEMENTS AND WRITINGS O.C.G.A §§ 16-10-20
Count 38 — SOLICITATION OF VIOLATION OF OATH BY PUBLIC OFFICER O.C.G.A §§ 16-4-7 & 16-10-1
Count 39 — FALSE STATEMENTS AND WRITINGS O.C.G.A §§ 16-10-20
Why this case matters so much
Trump was just indicted on charges that he conspired to illegally overturn results in the 2020 presidential election.
Yes, somewhat remarkably, we have been here before. Just weeks ago, special counsel Jack Smith indicted the former president over similar conduct.
And while Willis’ state case shares many similarities with Smith’s federal case, the results in the two cases could be quite different.
Presidents have the power to pardon those accused or convicted of federal crimes. This power is far-reaching and can stretch to include the ability to self-pardon. Even if Trump is convicted in federal court, he could attempt to pardon himself for any and all federal crimes if he wins the 2024 presidential election.
But even if he once again becomes president, Trump has no power to pardon himself for state crimes. States are, as we all learned in school, separate sovereigns.
All of this leads to the truism that if Willis and her team are able to convict Trump for seeking to undermine the 2020 election, Trump will not hold his own get-out-of-jail-free card.
Trump is already asking for money
Read the full Fulton County indictment
Fani Willis is expected to speak to the public shortly. Her indictment includes 41 counts, against Donald Trump and 18 other individuals.
Read the full indictment document here.
Trump is indicted and DA Fani Willis is reportedly getting ready to speak
We’ve got eyes on a podium and backdrop set up at Willis’ office, making it seem like she’s due to give remarks on tonight’s indictments.
Why this indictment will hurt Trump so badly in Georgia
NBC News reporter Garrett Haake raises a really interesting point on X (ugh). Trump already has lost in Georgia in 2020, despite his claims and efforts to the contrary. His now being indicted over trying to steal an election where he was beaten by several thousand votes isn’t likely to make up that difference in the 2024 election.
Lindsey Graham’s awkward Trump defense
Speaking on Fox News moments ago, South Carolina Republican Sen. Lindsey Graham clumsily, and preemptively, attempted to defend Trump against a likely imminent indictment: “The American people can decide whether they want him to be president or not. This should be decided at the ballot box, not a bunch of liberal jurisdictions trying to put the man in jail.”
It’s awkward for Graham to declare that America’s Trump problem should be decided at the ballot box given that Trump is being investigated for trying to effectively stuff the ballot box and cheat his way to victory in Georgia in 2020. Simply put, Trump’s misconduct isn’t the kind of thing that can be dealt with purely through the political process — if he did violate the law, then he should be held accountable for it just the way any other citizen would be.
A former — and potentially future — witness speaks
Here’s a new statement from George Chidi, the dogged reporter out of Atlanta who was subpoenaed twice to testify in the Fulton County election probe:
Chidi, whom I’ve deemed the “eyes and ears” of Atlanta for his expertise on the criminal justice beat, appears to have witnessed a meeting of “fake electors” coordinating on Dec. 14, 2020. In an article for The Intercept in July, he openly grappled with the ethical questions surrounding a journalist participating in a criminal inquiry, and he explained why he ultimately felt compelled to participate in the investigation.
Chidi is a must-follow if you want to know how Willis’ office operates. And, in particular, he’s an expert on Willis’ use of Georgia’s racketeering laws, which may be of key importance very soon.
Trump Team spends 350+ words yelling about indictments we haven’t seen yet
It’s been over an hour since the grand jury handed up a set of 10 indictments — and we still haven’t gotten any new details about them. That hasn’t stopped the Trump campaign from putting out a truly unhinged statement that basically boils down to a greatest hits of their bosses’ favorite grievances.
Among the highlights: the statement argues that Trump should have been charged immediately after he left office; it repeats the lie that special counsel Jack Smith has been coordinating with Fani Willis and Manhattan DA Alvin Bragg; and it pushes the ridiculous claim that Trump asking for a Georgia official to “find” votes is just him exercising his free speech.
Read the whole thing for yourself, if you can.
Open court is great. So why am I worried?
For the already thankless work of being volunteer poll workers in 2020, Ruby Freeman and her daughter Shaye Moss were falsely accused by those in Trump’s orbit of throwing Georgia’s election results to Joe Biden. For Trump followers who always understood that Make America Great Again was always about reaffirming the primacy of white people, Freeman and Moss were perfect foils: Of course Black women, the Democrats’ most reliable voters, would throw the election to Biden.
The memory of how Trump partisans made life hell for that mother and daughter is why I found myself worrying while watching the footage of the 10 indictments being walked to and from Superior Court Judge Robert McBurney’s courtroom this evening. There were multiple Black men and Black women involved in that process, and it’s not hard to imagine Trump supporters finding out their names and their addresses and unleashing racist harassment upon them.
As a former reporter who covered courts and as a journalist who generally values transparency, I think it’s great that Georgia is so transparent about what happens inside its courthouses and courtrooms. Still, I can’t shake the nagging feeling that those who were merely doing their jobs this evening are going to be subjected to harassment because they did.
Hillary Clinton: ‘I don’t feel any satisfaction’
Former Secretary of State and Democratic presidential nominee Hillary Clinton, speaking to MSNBC’s Rachel Maddow moments ago:
Well, it’s hard to believe. I don’t feel any satisfaction. I feel just great, profound sadness that we have a former president who has been indicted for many charges that went right to the heart of whether or not our democracy would survive.
We don’t know yet what the charges coming out of Georgia are. But if you stop and think about what the public evidence is — and you’ve been talking about some of that for the last hour — he set out to defraud the United States of America and the citizens of our nation. He used tactics of harassment, intimidation. He made threats; he and his allies went after state officials, local officials responsible for conducting elections. Now we know they even went into voting machines in order to determine whether or not those voting machines had somehow been breached when they were the ones actually doing the breaching. So there is a great deal already in the public record. …
The only satisfaction may be that the system is working, that all of the efforts by Donald Trump, his allies, his enablers, to try to silence the truth, to try to undermine democracy have been brought into the light, and justice is being pursued.
Why Georgia’s RICO statue in particular is such a powerful tool
Could the conduct of certain people in the Trump campaign organization — those who sought to substitute fake electors for real electors, for instance — make them part of a criminal enterprise for purposes of the Georgia RICO statute? Yes.
In fact, one important way in which the Georgia RICO statute is broader than its federal counterpart is that it includes, as predicate acts, the crimes of forgery and false statements. To the extent that “fake” electors created and signed false documents, that conduct could bring them within the scope of the Georgia RICO Act, assuming the other requirements of the statute are met.
Never forget Trump’s stunningly incriminating call
As we await more details on the indictments handed down tonight, let’s pay our respects to an oldie but a goodie in the timeline of Trump’s electoral chicanery: Trump’s infamous call urging Georgia Secretary of State Brad Raffensperger to help him “find” (read: conjure) enough votes for the outgoing president to declare himself the true winner in Georgia.
Looking back, this incriminating sequence feels incredibly emblematic of who Trump is as a person. This is a ham-handed, hubristic and incredibly presumptuous man, who is convinced for some reason that others will always be willing to fall on their swords for him. Trump even suggested that Raffensperger could be charged with a “criminal offense” if he didn’t go along with the MAGA movement’s electoral scheme. Oh, how wrong he was.
Check out the full tape here, if you wish:
Hillary Clinton is having a great night
In a wild twist of fate, former Secretary of State Hillary Clinton was booked to appear on MSNBC tonight before we knew for sure that Trump would (probably) be indicted, yet again. (She’s technically there to talk about an article she wrote for The Atlantic on “The Weaponization of Loneliness.”) And while Clinton said that it is a “sad day” and a “terrible moment for our country” to have a former president who has been charged with such serious crimes, she certainly looked like someone who is doing her level best to suppress some serious schadenfreude.
Cameras could make things different this time
One unusual factor in what a Georgia trial could look like: It’s likely all going to be caught on camera.
As NBC News has reported, “Georgia law requires that cameras be allowed into judicial proceedings with a judge’s approval.” The presiding judge has final say on whether cameras are in the courtroom, but requests are typically granted.
If Trump is indeed named in the indictments and his trial is captured on camera, that could transform the nature of how this trial is received by the public. Among other things, it would provide a lot more opportunity for visual storytelling and the documentation of subtle human moments.
Fani Willis moved faster than expected today
Based on what we knew ahead of tonight’s grand jury vote, it wasn’t clear how long it would take Willis to get through all of the evidence she had gathered over the course of her 18-month investigation. All we knew was that she was going to begin her presentation today, and that the grand jury in question typically only meets on Mondays and Tuesdays.
Given how much she’d pulled together since February 2021, including a full special grand jury investigation, our best guess was it would take Willis and her team two days to present everything. Clearly, she moved quickly. But also it appears she ended up not needing to call all of the witnesses originally lined up to testify. As a result, we’re now sitting here, at 9:30 p.m. ET, waiting to read the indictments as soon as they are distributed to the public.
Grand jury returns 10 indictments, but details are still unclear
The grand jury in Fulton County has returned 10 indictments to Judge Robert McBurney on Monday evening, NBC News reported. Those indictments were passed to the judge, who read them silently, signed off on them, and handed them off to be delivered to the clerk. It is still unclear precisely who has been charged or what the charges inside are. Your guess is as good as ours as far as how long it will be until we know any of the details inside.
If Trump is convicted, incarceration may not be the end result
If Trump is tried and convicted in any of the criminal cases he’s facing, it’s quite possible he won’t be ordered to serve any prison time.
That’s because his Secret Service detail could pose significant logistical challenges to imprisonment, as MSNBC legal analyst and former federal prosecutor Chuck Rosenberg told The Washington Post recently.
“Any federal district judge ought to understand it raises enormous and unprecedented logistical issues,” Rosenberg said of the prospect Trump could be incarcerated. “Probation, fines, community service and home confinement are all alternatives.”
Here’s what to know about RICO
The bulk of Willis’ investigation likely overlaps with Jack Smith’s own federal investigation into attempts to overturn the 2020 presidential election. But there is one significant way in which the Fulton County DA’s case could differ: RICO law.
That statute would give Willis broad discretion in how she constructs her case against the former president — discretion that no other prosecutor currently bringing a case against Trump has.
RICO typically refers to the Racketeer Influenced and Corrupt Organizations Act, a federal law that the Department of Justice has long used to prosecute organized crime. But many states have adopted their own versions of the federal RICO statute.
No, double jeopardy wouldn’t be a problem in this case
Trump being charged for election interference both federally and in Georgia wouldn’t pose a problem legally. Jordan Rubin explained why for Deadline: Legal Blog last month:
Strange as it may sound, people can be charged for the same conduct on both the state and federal levels. I was reminded of this odd legal fact upon the news of state charges against the “false electors” in Michigan for alleged 2020 election crimes.
In this case or any case, bringing state charges wouldn’t preclude federal charges, or vice versa. The Fifth Amendment’s double jeopardy clause protects against being put in legal jeopardy twice for the “same offence.” But that doesn’t stop prosecutions from proceeding in what are technically separate state and federal forums.
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