Worth the wait!

August 16, 2023

          The indictment issued by a grand jury in Fulton County, Georgia, was worth the wait. For two-and-a-half years, many Americans have felt as though the justice system has afforded Donald Trump and his co-conspirators a more lenient standard of justice than granted to all other Americans. Even the two indictments by special counsel Jack Smith were narrowly focused on Donald Trump (for understandable reasons). Trump's co-conspirators in the federal J6 criminal proceeding remain un-indicted. No more. The expansive Georgia indictment has reached criminals of every station, office, and capacity. At last! It was worth the wait.

          A torrent of legal analysis is arriving from every corner of the internet and cable news. Much of that analysis is superb and I will not attempt to repeat it here (with a few notable exceptions). Instead, I will step back to put the Georgia indictment in perspective so that we can process the indictment and move on to the urgent task of defeating Donald Trump at the ballot box. In doing so, I do not mean to minimize the significance of the Georgia indictment. Rather, I seek to cut through the details (for now) so that we can appreciate the sweep and force of a nation-defining indictment that deserves the praise and gratitude of Americans who value the rule of law.

“A great disturbance in the Force.”

          I am not a Star Wars fan (no hate mail, please), but everyone knows at least three quotes from the original Star Wars movie. One memorable line is, “I felt a great disturbance in the Force.” That notion applies to the sprawling indictment obtained by D.A. Fani Willis. Some commentators are criticizing the indictment for being “too big” and “too complicated.” That is the point!

          Fani Willis has just landed a Sikorsky Super Stallion helicopter on the 50-yard line of the Super Bowl two minutes before kickoff. You might criticize her choice of helicopter or the time and place of landing, but there is no ignoring a large military helicopter on the 50-yard line of the Super Bowl. She has occupied the field, and the members of Trump's criminal enterprise must deal with her—like it or not.

          By indicting criminal masterminds and petty criminals alike, Willis has maximized the likelihood that some of the defendants will plead guilty and agree to testify against co-defendants. That pressure is (currently) absent from Jack Smith’s narrowly targeted indictment. The sweep of the indictment is the point.

          It is true that Willis has invited a procedural assault by dozens of high-paid lawyers representing nineteen defendants. Regardless, she has the upper hand, a point she made at her post-indictment news conference. A reporter asked if she intended to try all nineteen defendants in a single case. She said, “Yes”—she will seek a single trial including all defendants.  

          Willis knows, of course, that there will never be a trial involving nineteen defendants. Some defendants will drop out because of plea deals. The court will likely force her to hold separate trials against similarly aligned defendants. So, her threat was more bravado than substance. But in saying that she will seek to try all defendants in a single case, she has put the co-conspirators on the defensive. They are reacting to her—which is exactly what she wants. She is the “disturbance in the force.” Good! It is about time!

The drama.

          There will be much televised “drama” in the next several weeks as nineteen defendants report for booking and are arraigned. On the one hand, it is a healthy sign that our democracy treats former presidents and volunteer (fake) electors alike. On the other hand, the legal significance of the bookings and arraignments is unremarkable. Don’t get sucked into the made-for-television drama—at least not excessively. You have more important things to do.

The most important procedural motion.

          Every defendant who is a former federal officer will seek to “remove” the Georgia state prosecution to federal court. “Removal petitions” will dominate the early procedural jockeying in the Georgia proceeding. Whether we like it or not, we will all soon become experts in the arcane subject of removal of state criminal proceedings to federal court. (After a four-decade career in law, I never confronted that question.)

          There is no better place to begin your education in the removal of state criminal proceedings to federal court than with an article by Laurence Tribe, Dennis Aftergut, and Donald Ayer in The Atlantic, Don’t Let Donald Trump Take His Case to Federal Court. (This article should be accessible to all.)

          As Tribe, et al, explain, removal is appropriate only when a federal officer is charged with a crime arising out of his conduct in the course and scope of his duties as a federal officer. But Trump had no constitutional role in the selection of electors. Per Tribe,

[T]he one election the Constitution and the laws that implement it deliberately give the American president absolutely no role in overseeing is his own by the Electoral College.

          The removal analysis will be different for each former federal officer. It is conceivable that some could succeed while others fail. If so, Fani Willis will be required to prosecute some defendants in federal court. Why does that matter? Per Tribe, if Trump succeeds in removing the case,

he will get a shot at a jury pool drawn from the entire Northern District of Georgia and not just from Fulton County, which is seated in purple-to-blue Atlanta. A jury pool that adds Fulton’s eight neighboring counties, including one of the reddest in the state, is likely Trump’s goal in his belief that the jury might well include Forever Trump believers inclined to acquit regardless of the evidence.

In addition, Trump might draw a friendly judge to preside over the trial—ideally, from Trump’s perspective, one of the four he appointed himself to the Northern District of Georgia bench.

          As to the second point—that Trump might draw a Trump-friendly judge—that danger appears to have passed. Mark Meadows has already filed a removal petition, which has been assigned to federal Judge Steve C. Jones, appointed by President Obama. Prior to his appointment to the federal bench, Judge Jones served as a state court judge in Georgia—good background for presiding over a Georgia-based state prosecution removed to federal court. Future removal petitions should be assigned to Judge Jones as “related cases.”

          [Note: I am assuming that the federal court for the Northern District of Georgia follows the “low number” assignment rule. If any Georgia practitioner has a different view, please email me.]

          So, if Trump is successful in removing the case, the major consequences will be a change in the jury pool and the lack of a televised trial. Other than that, D.A. Fani Willis will continue to serve as the prosecutor on the same charges. While removal to federal court may inject some delay and complicate life for Fani Willis, Trump will not be able to escape his day of reckoning in court.

          Note: If Trump is successful in removing the case to federal court, he cannot “pardon” himself of the state-law crimes. Nor can the Georgia State Board of Pardons and Paroles pardon Trump if he is convicted in state court. See Slate, Georgia indictment: Why Trump can't rely on a pardon—even if state Republicans want one.

 The Georgia lawsuit is not a substitute for the election.

          Readers are already fretting that the delay caused by removal motions and motions to dismiss will delay the trial beyond the 2024 election. That seems probable, if not likely. But that is okay. Do not conflate the progress of the Georgia criminal proceeding with the 2024 election. The only remedy at our disposal as voters is to defeat Trump at the ballot box. We have no control over the progress of the Georgia criminal proceeding, so we should refrain from injecting that proceeding with electoral significance it does not have.

          To be clear, the fact of the indictment matters to the outcome of the 2024 election. Although the point of the indictment is to preserve the rule of law, the unavoidable consequence is that some voters will conclude that Donald Trump should not be president because he is facing a fourth indictment.

The “big picture.”

          Okay, with all of the above as background, what is included in the indictment? A helpful summary is set forth by Andrew Prokop in Vox, Georgia Trump indictment: The 5 conspiracies at its heart.

          As Prokop explains, Trump is at the center of three conspiracies included in the indictment:

(1) Trump's effort to force Georgia officials and legislators to change the results of the election;

(2) the fake electors’ plot in Georgia, and

(3) the effort (through Jeffrey Clark) to convince the DOJ to send a false letter claiming widespread election fraud in Georgia.

Two other conspiracies are charged that do not involve Trump:

(4) the effort to convince Ruby Freeman and Shaye Moss to change their testimony; and

(5) the breach of the Coffee County voting machines.

          If you read The Atlantic article on removal and the Vox article on the five conspiracies central to the indictment, that is enough “education” for today. Future newsletters will include tutorials (and exams) on the intricacies of RICO law and the application of hearsay exceptions to co-conspirators.

Concluding Thoughts.

          Thanks to all who sent good wishes to my wife/Managing Editor and me on the occasion of our 42nd anniversary. And special thanks to my wife for allowing me to devote time on our anniversary date night to write this newsletter.

          Thanks to all readers who have suggested ways to support victims of the wildfires in Hawaii. I will be back in civilization on Wednesday and will compile a list of the most frequently mentioned/vetted organizations. Thanks to residents of Hawaii who have written to add your perspectives on the most effective ways to help. I welcome additional input from survivors, family, and friends. Our thoughts are with you.

          All Americans should be grateful for Fani Willis’s dedication and courage in pursuing justice. Other prosecutors have seen similar criminal conduct by Trump and have failed to act (so far). Fani Willis has demonstrated the impact that a single, dedicated individual can have.

          Each of us should take inspiration from Fani Willis’s example. We may not be able to land a helicopter on the 50-yard line at the Super Bowl, but we can pass out leaflets to the fans entering the stadium. In an evenly divided electorate, even small gains can change the outcome. Let Fani Willis fly the helicopter; let’s focus on the person-to-person interactions.

          Talk to you tomorrow!