NRPLUS MEMBER ARTICLE T his is the second column in a two-part series. In the first, I argued that Fulton County district attorney Fani Willis’s RICO indictment of former president Donald Trump and 18 others is wrongheaded. In this column, I’ll outline the three or more simpler indictments she might properly have brought, while assessing what is right and wrong about the charges as they currently stand.
I’ll begin with the cases as Willis should have divided them, while addressing as we come to them the charges that should be thrown out. To be clear, by describing a case or charge as viable, I am not prejudging Trump or any other defendant as guilty; the defendants are presumed innocent, and I happen to believe there are strong defenses to be made against many of the allegations (although the fact that a defendant may have a good chance of beating a charge does not render that charge legally invalid, either). By contrast, some of Willis’s charges are, like the RICO allegation, legally meritless. And one charge — the attempted-false-statements charge against former Justice Department official Jeffrey Clark — is downright ridiculous.
Case One — The Trump Case
Obviously, Trump is the lead defendant and the main target of Willis’s prosecution. So I’ll begin with the case that could have been brought against him and ten — not 18 — codefendants. I do not believe that Willis has a viable case against two of those ten: Mark Meadows, Trump’s former chief-of-staff, and Jenna Ellis, one of his campaign lawyers.
Case one includes four separate schemes, in addition to false-statements charges against three individual defendants. The schemes are as follows.
a. Fake Electors
The main charge in the case is the so-called fake-electors scheme, which Willis charges in Counts 8 through 19 of the indictment. This scheme could conceivably be brought as one case but, as I’ve adumbrated, it would be better brought as two cases. That is because the scheme featured two groups that appear to have had different understandings of its essence.
The main group of defendants consists of Trump and six of his advisers, mostly lawyers — Rudy Giuliani, John Eastman, Ken Chesebro (a campaign lawyer often described as the architect of the electors gambit), Mike Roman (a campaign official), and two campaign lawyers in Georgia, Ray Smith and Robert Cheeley. The second group consists of three defendants who acted as electors — David Shafer, Shawn Still, and Cathleen Latham.
While the electors scheme was cockamamie and was not taken seriously, that doesn’t mean it wasn’t criminal. It is alleged that the electors impersonated public officers (i.e., the legitimately certified electors — the Biden slate), forged documents representing that they were the legitimately certified electors, and used the U.S. mail to file these documents in federal court in Washington, D.C. These are potential crimes under Georgia law. It is worth noting, though, that the Justice Department has not charged the electors, even though special counsel Jack Smith construes fraud on the government very expansively, and even though it is alleged that the defendants used the federal mail system to file false documents in federal court. The restraint of the habitually aggressive feds suggests that Willis’s decision to charge the scheme is a debatable exercise of discretion. Yet, it’s too early to make such a judgment — and, in any event, what’s done is done.
Even though all defendants listed above are involved in the scheme, it would be better to sever the case of the three electors from the main defendants. Those three contend that they believed they were contingent electors, not fake electors — that is, that they were simply acting as a placeholder slate in the unlikely event the campaign succeeded in getting the election overturned by legal means, at which point they would assert themselves as the Trump slate, which would lawfully supplant the Biden slate.
By contrast, the main defendants are alleged to have plotted to use the existence of this “alternative” slate of Trump electors as a pretext to urge Vice President Pence to invalidate Georgia’s electoral votes, or at least suspend the count and remand the matter to the state legislature. The three electors are expected to argue that they never agreed to such a plan. Willis implicitly concedes that the main group and the electors group had different understandings: She doesn’t charge them with conspiring together; rather, she charges the electors with taking illegal actions (e.g., forgery) and then charges the main defendants with conspiring to commit those same illegal actions. If everyone had been on the same page, there would be no reason not to include everyone in the same conspiracy counts.
A separate case against the electors would make sense because Trump, as a federal official, may be able to remove the case to federal court, probably bringing along any defendants charged with him. The so-called fake electors were not federal officials; if Willis had indicted them separately, their case would remain in state court.
b. Filing False Statements in Federal Court
Trump and Eastman are alleged in Count 27 to have filed a verified complaint in Atlanta federal court that made claims that they knew to be false and that inflated the number of supposedly illegal votes cast in Georgia. As I have detailed, this allegation was first flagged by Judge David O. Carter in California federal court in civil litigation over the House January 6 Committee’s subpoena demanding that Eastman surrender his campaign-related emails.
c. The Raffensperger Phone Call
Trump and Meadows are charged in Count 28 with the state crime of soliciting the commission of a felony, to wit pressing Georgia secretary of state Brad Raffensperger to commit what Willis speculates would have been the crime of unlawfully adjusting or otherwise influencing certified returns of presidential electors. This is a meritless allegation.
To avoid criminalizing speech that is protected by the First Amendment, federal law limits solicitation to crimes of violence. Georgia’s law is dangerously expansive, covering solicitation of any kind of felony (i.e., it is not limited to inciting the illegal use of force). This sweeps too broadly, especially as applied to the facts of this case.
It may well be constitutionally permissible to criminalize solicitation of a crime that is non-violent but unmistakably illegal — say, soliciting an embezzlement. By contrast, free-speech principles protect the petitioning of government officials to take actions, even actions of dubious legality. It was not a crime, for example, for Democrats to petition President Biden to unilaterally cancel student debt, even though his attempt to do so was predictably ruled to be lawless by the Supreme Court.
Here, Meadows is not alleged to have done anything but set up the call — which took place on January 2, 2021, in the presence of lawyers, under the auspices of a negotiation to settle legitimate election litigation between the campaign and the state. There is no conceivable case against him.
Furthermore, it was not a crime for Trump to urge Raffensperger to accept his lawyers’ claims about irregular votes, even if those claims were unfounded. Contrary to media-Democratic complex insistence, Trump was not directing Raffensperger (a state official he had no power over) to manufacture the 11,780 votes he needed to overcome Biden’s margin of victory; Trump was theorizing, based on his lawyers’ errant extrapolation of voting data, that there were tens of thousands of illegal votes, but that was because he only needed 11,780 to surpass Biden, he didn’t need Raffensperger to agree with the full breadth of his lawyers’ allegations. As the conversation ensued (with Trump’s lawyers unremarkably asking the state to disclose any hard data in the state’s possession that refuted the campaign’s extrapolations), Raffensperger rebutted Trump’s claims one-by-one, and in the end rebuffed him. Nothing further came of it. The solicitation allegation is baseless.
Trump alone is charged in Counts 29 and 39, with making specific false statements to the secretary of state about illegal voting in Georgia. The false statements were allegedly made in the January 2 phone call and in an effort on September 20, 2021, (i.e., nine months later) to urge Raffensperger to decertify Georgia’s electoral votes. In the context in which Trump made these statements, I believe he has a strong argument that they are not actionable. But I cannot say with confidence that Willis should be denied the opportunity to prove at trial that Trump’s statements were knowingly false.
On the other hand, Count 38 should be thrown out: It charges Trump with soliciting Raffensperger to commit a felony in the September 20, 2021, decertification plea. The solicitation was constitutionally protected speech — and even if we assume, for argument’s sake, that Trump didn’t actually believe what he was saying, it is doubtful that decertifying electoral votes at that point would even have been possible.
d. The Scheme to Induce the State Legislature to Invalidate Biden’s Popular-Vote Victory
In Counts 2 through 7 and 23 through 26, Willis charges Trump — as well as, variously, Giuliani, Eastman, Smith, and Ellis — with soliciting components of the state legislature to invalidate Biden’s popular-vote victory, and with providing false statements about alleged voting irregularities toward that end. I believe all of these charges should be thrown out.
Not to belabor the point, but it is not a crime to ask a state legislature to take action, even if the person doing the asking is acting in bad faith. Hyperbole (to put it charitably) is a staple of legislative discussion and debate, and the First Amendment protects petitioning the government.
That, of course, does not mean that lying to a legislative body is never actionable. Indeed, Georgia has a criminal statute that is intended to address just such misconduct: false swearing. If a person appears before a formal legislative proceeding, is placed under oath, and makes false statements, that is actionable perjury.
Willis cannot validly charge false swearing, however, because the statements she wants to criminalize were not made under oath. So she instead invokes a statute making it a crime to make false statements to “a department or agency of state government.” Yet, generally speaking, departments and agencies are components of the executive branch. It is thus common for people to be prosecuted for making false statements to law-enforcement agents and administrators, even if such statements are not sworn. Legislatures are a more freewheeling, separate branch of government in which an oath is required to trigger the obligation to be truthful on pain of prosecution.
Patently, Willis is aware of this problem: In Count 3, for example, although she concedes that Giuliani’s allegedly false statements were made to a state senate committee, she takes pains to allege that the subject matter of the statements — alleged voting irregularities — was “within the jurisdiction” of two executive agencies (the Secretary of State’s office and the Bureau of Investigation). But making statements that are in the ken of an agency is a very different thing from making statements to an agency. If I lie to my neighbor by saying I didn’t see a bank robbery that I actually saw, I have not committed a false-statements crime just because the police have jurisdiction to investigate the bank robbery; to be criminally liable, I would have to tell the lie directly to the police.
Given that the campaign officials named were not providing information to an executive agency, but instead were making unsworn statements to petition the legislature, as they had a constitutional right to do, the solicitation and false-statements charges involving legislative committees should be dismissed.
Jenna Ellis is charged only with making false statements to the legislatures — not with participating in the electors scheme or making false statements to executive agencies. Ergo, the case against her should be dropped.
e. Other False Statements
David Schafer and Robert Cheeley are charged, in Counts 40 and 41 respectively, with making false statements to the district attorney’s office and committing grand-jury perjury. If these defendants were to be tried jointly with Trump, these counts could properly be included.
Case Two — The Hacking Conspiracy
The indictment, in Counts 32 through 37, charges defendants Sidney Powell, Cathleen Latham, Scott Hall, and Misty Hampton in schemes to purloin voting information from electronic databases.
This may be the most serious series of offenses in the indictment, which highlights a challenge for Willis: Although state law provides strong penal statutes for the protection of voter privacy, election integrity, and state property, Willis’s evidence of violations along these lines mainly implicates minor defendants. (Powell was one of Trump’s lawyers and is considered a major defendant, but she is not named in the Case One schemes discussed above, in which most of the major “Stop the Steal” players are charged.)
By contrast, the major defendants Willis wants to charge — in particular, Trump and his top advisers — do not appear to have been complicit in the hacking. In fact, unlike the so-called fake-electors scheme, in which the major defendants are charged with conspiracy in connection with the minor defendants’ alleged forgery and related crimes, the major defendants are neither charged nor even named in the hacking counts. Obviously, that’s why Willis cooked up her RICO allegation — she is trying to tie together and hang on Trump disparate schemes as to which she has scant evidence of his involvement.
The hacking schemes, allegedly commissioned by Powell and executed by the others, include conspiracies to commit election fraud, invade voter privacy, steal the proprietary data of Dominion Voting Systems Corp., and appropriate data controlled by the Georgia secretary of state. This case should be a standalone prosecution of the four named defendants on the hacking charges.
Although Latham is charged in both the so-called fake-electors scheme (Case One) and the hacking conspiracy (Case Two), there is insufficient overlap between the two to justify trying them together.
Case Three — Witness Tampering and Solicitation
The indictment, in Counts 20, 21, and 31, charges defendants Stephen Lee, Harrison Floyd, and Trevian Kutti with attempting corruptly to influence the prospective testimony of Ruby Freeman, an election worker at the State Farm Arena, where the Trump campaign claimed that election workers engaged in sundry misconduct in order to inflate Joe Biden’s vote count. (The Republican-controlled state government investigated the campaign’s allegations and found them to be wrong.) Although the indictment makes much of Giuliani’s role in promoting the claim that Freeman may have committed a crime — a claim Giuliani has admitted was false in connection with Freeman’s defamation lawsuit against him — neither Giuliani, Trump, nor any other major defendants are charged in the witness-tampering counts.
Instead, these counts deal with (1) a trip Lee took on December 14, 2020, in an unsuccessful attempt to speak with Freeman, and (2) conversations the three defendants had with Freeman on January 4, 2021, stressing to her that she needed protection and that they were trying to help her — which Willis plausibly (but not incontestably) alleges was an effort to intimidate Freeman and shape her eventual testimony. Relatedly, in Count 30, the three defendants are alleged to have solicited Freeman to commit the offense of providing false information to Georgia’s secretary of state and its Bureau of Investigation.
While I believe it is imprudent in a political context to charge a person with solicitation unless violence is involved, giving false testimony is clearly a crime. Consequently, I cannot say that the charge of soliciting someone to give false testimony raises the same constitutional objections attendant to the afore-discussed charges of soliciting a legislature to take unwarranted action.
Case Four — Attempted False Writing by a Justice Department Official
Mocked by his superiors as a doofus out of his depth, former Justice Department official Jeffrey Clark was spotlighted as a villainous Trump toady by the House January 6 committee. In her boundless determination to provide catnip for progressive Democrats, Willis charges Clark, in Count 22, with attempting to provide false statements to state departments and agencies. She has to try to frame this “crime” as an attempt because the letter from which it allegedly arises was never sent.
In fact, the letter wasn’t even a real letter. It was merely a draft, bearing the bold stamp “FOR INTERNAL SJC USE ONLY — DO NOT DISTRIBUTE,” as well as a bold header reading “Pre-Decisional & Deliberative/Attorney-Client or Legal Work Product — Georgia Proof of Concept.” Clark claimed in the draft that the Justice Department had “identified significant concerns that may have impacted the outcome of the election” in Georgia. While Clark may have had such concerns, the Justice Department at its top echelon (including Attorney General Bill Barr, who had recently resigned, and then-acting attorney general Jeffrey Rosen) believed they were baseless. But no matter. Even if we were to assume for argument’s sake the worst motives on Clark’s part, the draft did not even bear Justice Department letterhead. It was meant only for discussion with Clark’s superiors, who immediately rejected it. It went unsigned and was never meant to see the light of day.
Even if Willis’s allegation were not constitutionally offensive, there is a basic legal infirmity: The draft letter does not come close to the “substantial step” in the maturation of a criminal plan that the law requires to establish the offense of attempt to commit a crime. But there are blatant constitutional improprieties: State prosecutors in Georgia have no business intruding into the lawful operations of federal law-enforcement officials at the Justice Department — and even allowing that Clark’s draft was stupid, it was not unlawful. Moreover, because the letter was never sent and got nowhere near the state of Georgia, there was no Georgia crime. There was no crime at all.
This charge should be swiftly dismissed. For any good judge, it would raise concerns about Willis’s competence, if not her ethics and good faith.
Conclusion
District Attorney Willis’s election-interference indictment is deeply flawed. Her RICO charge is ill-conceived and should be dropped. The case should be stripped down and repleaded as no fewer than three indictments. Trump and some of his codefendants could properly be charged in the counts related to the so-called fake-electors conspiracy, and there similarly seems to be no legal bar to charging him (and Eastman) with making false statements in a court pleading. The charges that Trump (and Meadows) solicited Secretary of State Raffensperger to commit felonies should be thrown out as constitutionally and factually flawed. The allegation that Trump knowingly provided false information to Raffensperger may be barely sufficient, although he would have a strong defense against it. Indeed, none of the charges against the former president is what we’d call a “slam-dunk.” Like the Raffensperger-solicitation counts, the charges that Trump and his codefendants solicited state legislatures to commit felonies, and that they otherwise provided false statements to legislative committees, should be dismissed as constitutionally and factually objectionable.
The valid charges against Trump could be brought in a joint indictment against six of his advisers (Giuliani, Eastman, Chesebro, Roman Smith, and Cheeley), as well as the three supporters who acted as so-called fake electors. It would be better, however, to sever the main defendants from the three fake electors: The two groups are not charged in the same conspiracy and appear to have had divergent understandings about the scheme; moreover, the alleged fake electors could then be tried in state court without any specter of removal to federal court.
The charges against Case One defendants Mark Meadows and Jenna Ellis should be dismissed — as should the unrelated charge against Jeffrey Clark (Case Four).
The hacking conspiracy (Case Two) and the witness-tampering conspiracy (Case Three) should be severed and tried separately. These cases appear straightforward and, because they do not involve defendants who were federal officials at the relevant times, removal to federal court would not be an issue.
Any judge who ordered Willis to pare down her indictment in this manner would be doing her a favor.