There are 41 criminal counts in the nearly 100-page Georgia election interference indictment against former U.S. president Donald Trump and 18 others. And by the estimation of Morgan Cloud, a law professor at Emory University in Atlanta, about 60 per cent is devoted to the first count: racketeering.
It’s certainly the most serious charge, one that’s often used to target members of organized crime groups — carrying with it a penalty of up to 20 years in prison if convicted.
It’s also one of the intriguing aspects of Monday’s indictment, the fourth against Trump, who is being accused of engaging in a criminal, racketeering enterprise to overturn Georgia’s presidential election result in 2020. It also includes 13 felony charges against the former Republican president.
Mark Meadows, Trump’s former White House chief of staff, and lawyers Rudy Giuliani and John Eastman were among those charged.
The indictment cites a number of crimes that Trump or his associates allegedly committed, including falsely testifying to lawmakers that election fraud had occurred and urging state officials to violate their oaths of office by altering the election results.
It also mentions an alleged scheme to subvert the U.S. electoral process by submitting false slates of electors — people who make up the electoral college, which elects the president and vice-president. The indictment reaches across state lines, saying that Trump’s advisers, including Giuliani and Meadows, advanced the conspiracy by calling officials in Arizona, Pennsylvania and elsewhere seeking to change the outcome in those states.
CBC News looks into the legal aspects of the case, the racketeering charge and the challenges faced by prosecutors.
Why the racketeering charge?
“Any time you’ve got a scheme, a group of people who are committing multiple acts in furtherance of a conspiracy, Georgia RICO is going to be applicable in that situation,” Christopher Timmons, an Atlanta trial lawyer and former prosecutor, said, referring to the Racketeer Influenced and Corrupt Organizations Act.
“It’s a ridiculously broad statute,”he said.
For example, if someone in Georgia walks into a shopping mall store and steals a pair of socks, then walks into another store and steals another item, they could be charged with racketeering under RICO because that would be considered two crimes that are related to each other, Timmons said.
While RICO can be abused, in the Georgia election case, it’s much more applicable, he said, because there are 19 people accused of engaging in the same conspiracy.
Racketeering is most associated with organized crime trials. Timmons said that in a traditional organized crime case, there may be one member who is accused of illegal gambling and another accused of illegal prostitution, where neither know each other but work for the same crime boss. Using RICO, both can be added to the same indictment.
“And we can talk about all the illegal gambling in the RICO case against the guy who’s charged with prostitution and vice-versa,” he said. “The scope of relevance in terms of evidence is much broader. And I think suddenly everything is relevant, nothing is inadmissible.”
What does that mean for Trump?
“You can bring in all of the things that Rudolph Giuliani did, all the things that [former Trump lawyer Jenna] Ellis did in the case against Trump,” Timmons said.
“What would ordinarily be irrelevant is coming into your case.”
One of the strengths of the racketeering statute from a prosecution point of view is it allows the prosecutor to string together disparate bits of information, multiple people and different activities, Emory University’s Cloud said.
Michael Zeldin, a former federal prosecutor in the U.S., explains what a RICO charge is — and what it might mean for former president Donald Trump and his associates.
Many of the paragraphs in the RICO charge don’t list Trump or Giuliani or any of the local people, he said.
“There are different defendants named in different paragraphs. And what the prosecutor can do, and really is called upon to do, in RICO is to try to show how all of the activities — even if committed by different people in different states in different ways — are all part of a large, ongoing, continuing enterprise with a shared purpose or plan.”
Anthony Michael Kreis, an assistant professor at Georgia State University’s College of Law in Atlanta, agreed that the conduct that’s alleged in this case is more akin to what RICO was designed for than how it’s been applied in some other cases in Georgia.
In the election interference case, “there really was a sprawling amount of conduct all over the state and all over the country,” he said. “And there were many actors who were not talking to one another or necessarily not forming over conspiracy pacts. And so this law is designed for something like this.”
Prosecution challenges
Kreis said one of the biggest challenges facing the prosecution will be showing the intent behind the parties and proving that Trump knew what he was doing and that he knew it was wrong.
“That he wasn’t just following legal advice. He was crafting quite an underhanded campaign through his lawyers. And I think that that’s really what [Willis] needs to show in order to really be convincing,” Kreis said, referring to Fulton County District Attorney Fani Willis.
But one of the bigger issues will be how to explain, all at the same time, so many of these different alleged offences about so many different people.
The advantage of having a lot of people in a case is that it can be overwhelming to a jury, where it’s just like the point is there’s so much evidence it must have happened,” said Jeffrey Brickman, an Atlanta-based criminal defence lawyer and former district attorney of Georgia’s DeKalb County. “And then the other side of that [is] this is too much info. There’s only so much [the jury] can digest, and there’s a greater chance of of jury confusion.”
Trial to begin in six months? Unlikely
Willis told reporters that she would like the trial for Trump and the other 18 defendants to start in six months.
But that’s wishful thinking, say some legal observers.
“I think the weakness of this indictment is that it creates so much room for defence lawyers to try to take it apart or to stall or delay,” Cloud said.
“With 41 counts, with 19 defendants, with allegations relating to activities not just in Georgia but in Arizona and Pennsylvania and Michigan and District of Columbia and elsewhere, there will be plenty of opportunities for lawyers to file motions to get charges dismissed.”
There’s also the issue of the three other indictments that Trump faces in New York, Florida and Washington, D.C., and the scheduling challenges of the other 18 defendants.
And perhaps most significantly is that the courts in Fulton County, the largest of the 158 counties in Georgia, are backed up, Brickman said.
“I have cases in Fulton County that are jail cases … and those cases are still sitting around. We’re just waiting our turn,” he said.
“For this particular indictment, each defendant will file motions, which will mean hearings on those motions,” Brickman said. So along with Trump, “the downside of 18 people, you’ve got 18 rounds of motions, and so it’s going to take forever.”
Another potential delay could be that Trump has the opportunity to ask a federal-level court to take over this case, Kreis said.
The former president could argue that all of his actions were taken as an officer of the United States as part of his official duties, meaning the case could be heard in a federal court, he said.
“It’s not clear to me whether he’ll win or not, but that’s another major motion that’s going to have to be handled,” Kreis said.
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