Why Georgia indictment could pose unique peril for Trump

It may be the last indictment of former President Donald Trump on serious charges this year. But it is likely far from the least.

In the end, the racketeering case against Mr. Trump and 18 others handed up by an Atlanta grand jury on Monday night could be the most consequential of all the legal threats the ex-president currently faces, according to some legal experts.

In part, that’s due to its sweep. The Georgia indictment features 13 counts against Mr. Trump and 41 counts overall. It charges top Trump allies such as lawyers Rudy Giuliani and Sidney Powell and former Trump chief of staff Mark Meadows with participating in a conspiracy to overturn the results of the 2020 presidential election.

The case also underscores the central role states play in elections. The Constitution gives states the responsibility of running elections for federal office. Many states have laws directly applicable to the sort of election obstructions that Mr. Trump and his allies allegedly engaged in. The Atlanta charges are based on Georgia’s uniquely expansive RICO anti-racketeering law, for instance.

But ultimately its greatest significance might be a result of simple transparency. If and when the case does go to trial in Atlanta’s Fulton County, it will almost certainly be broadcast on live TV, says Anthony Michael Kreis, an assistant professor at the Georgia State University College of Law.

That could be a benefit for the nation at a time when disinformation has helped split U.S. politics into entrenched partisan positions, he says.

“The American people should be able to see this evidence and weigh the case for themselves and come to a determination,” says Professor Kreis.

With its large cast of defendants and 41 separate criminal charges – including racketeering counts linking Mr. Trump’s activities to an alleged broader national conspiracy to overturn the presidential election – the Georgia indictment was surprising to many legal experts in its scope.

It’s about Georgia, but it’s not just about Georgia. It places the key swing state at the center of a national conspiracy.

That distinguishes the case brought by Fulton County from the more focused indictments brought against Mr. Trump by special counsel Jack Smith of the Department of Justice, which concern, respectively, his attempts to retain classified documents and to overturn his 2020 election defeat.

And the broad scope may help prosecutors more than it hurts them, even if the variety of charges makes the case more complex. For example, the indictment claims that Mr. Trump and his co-defendants pressured election officials in Georgia to tip their results in his favor, and that they attempted to access voting machines. The indictment alleges they did the same thing in Michigan.

“That puts the Georgia materials in a much more damning light,” says Professor Kreis.

RICO’s pluses – and minuses

The broad scope means prosecutors can bring in a lot more evidence. The number of co-defendants increases the evidence pool as well. The indictment charges all 19 defendants (and 30 unindicted co-conspirators) under Georgia’s RICO Act, a racketeering law designed to allow prosecutors to charge anyone involved in a criminal enterprise even if they didn’t do the dirty work. RICO (which stands for Racketeer Influenced and Corrupt Organizations) is typically known as a tool to prosecute the Mafia. But Fani Willis, the Fulton County district attorney behind Monday’s indictment, has used it to successfully prosecute Atlanta educators who allegedly conspired to inflate standardized test scores and to go after alleged gang activity by a group of Atlanta rappers.

“The reason that I am a fan of RICO is, I think jurors are very, very intelligent,” Ms. Willis told reporters at an August 2022 press conference. “They want to know what happened. They want to make an accurate decision about someone’s life. And so RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”

RICO also may be a useful tool in developing inside sources. The criminal enterprise doesn’t need to have been successful for a RICO charge to stand up, and prosecutors often use it to pressure co-defendants into flipping on higher-ups.

Still, complex RICO cases can take a long time to reach a courtroom, experts say. The case Ms. Willis brought against the Atlanta rappers in May last year has yet to go to trial.

At the federal level, special counsel Smith has employed “a strategy of speed and simplicity,” says Shane Stansbury, a former federal prosecutor and distinguished fellow at the Duke University School of Law. In the Georgia case, “we have a sprawling indictment with many, many defendants and encompassing a variety of conduct. That inevitably puts it on a different timetable,” says Mr. Stansbury.

Presidents can’t pardon in state cases

But unlike the federal indictments of Mr. Trump, the Georgia case will proceed no matter who wins the 2024 election. If he returns to the White House, Mr. Trump could scuttle the federal cases or attempt to pardon himself. Presidents have no such powers over the outcomes of state cases.

Mr. Trump may attempt to have the case moved to federal court, arguing that he was acting in his official capacity as president of the United States. He might face a friendlier jury and could draw a judge he appointed to office.

But the bar for such a move is high. The former president has already tried and failed to accomplish this move in New York, where he faces charges related to the payment of hush money to a porn star. 

Mr. Trump’s defense in Fulton County is likely to echo his defense in the federal election interference case that special counsel Smith brought earlier this month. It will probably rest on the assertion that his actions involved protected political speech and petitioning of the government. He is likely also to continue to insist that he truly believed there was election fraud. On Tuesday, Mr. Trump announced on his Truth Social network that he would soon present a report proving that Georgia election fraud existed.

“This time, like Jack Smith’s second Trump indictment, the charges are for the non-crimes of objecting to a presidential election (allowed by the Electoral Count Act of 1887) and twisting political arms (allowed by the First Amendment),” said Mike Davis, director of The Article III Project, in a statement critical of what he terms the Biden administration’s “political law-fare” against Mr. Trump.

“Always trying to get someone in trouble”

Georgians themselves are far from settled about their state’s upcoming role in former President Trump’s legal drama.

Republican Gov. Brian Kemp on Tuesday rejected Mr. Trump’s continued insistence, with no substantiation, that the state’s 2020 vote was stolen.

“Our elections in Georgia are secure, accessible, and fair – and will continue to be as long as I am governor,” said Governor Kemp.

But some Georgia voters in the state’s coastal Chatham County, interviewed after the release of the latest Trump indictment, say they remain uneasy about the situation.

Democrat Matthew Hodge says he didn’t vote for Mr. Trump, but that prosecuting the former president at the state level seems like overkill.

“I don’t get this whole thing of always trying to get someone in trouble,” especially if the crimes aren’t clear-cut, he says.

He also worries that Mr. Trump, who has spent a long career testing the boundaries of the law, might wind up in an even more powerful position if he’s acquitted.

“The man knows how to wiggle, wiggle, wiggle,” says Mr. Hodge.

Iraq War veteran Les White voted for Mr. Trump twice. He saw the former president’s efforts to stay in the White House as both an exercise of free speech and an attempt to execute the office of the presidency to the best of his abilities.

In that light, he says, Ms. Willis’ prosecution reflects a “deeper corruption” that could open the door for other states and municipalities to target national politicians over borderline indiscretions.

He believes that the legal full-court press against Mr. Trump is not just a power play but a ruse to take attention away from Democratic policies “that are taking the country down.”

“I’m not doing better economically than I was before, and no one I know is doing better economically,” says Mr. White.

Patrik Jonsson reported from Savannah, Georgia, for this story.