The Fulton County District Attorney’s charges against former President Donald Trump are likely to stick – and survive any of the likely coming motions to dismiss them – a legal expert and scholar of state and federal racketeering (RICO) laws tells Law&Crime.
Trump is charged along with 18 additional co-defendants in a sprawling, 98-page, 41-count criminal grand jury indictment secured by Fulton County DA Fani Willis (D) on Aug. 14. The 45th president personally faces 13 counts over his efforts to overturn the results of the 2020 election.
The counts include alleged, forgery, false statements, conspiracy to influence an election, perjury, influencing witnesses, and charges under the Peach State’s homegrown RICO Act over a series of ultimately failed efforts by the ex-president, his lawyers, and other GOP figures, to deny President Joe Biden Georgia’s 16 electoral votes.
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Etan Mark, an attorney with the Miami-based law firm Mark Migdal & Hayden who has worked, and written, extensively on civil RICO cases, told Law&Crime the details of the Fulton County indictment are strong enough that Trump is likely in severe legal jeopardy.
“The Georgia indictment reminds me of the saying, ‘When you shoot at the king, you better not miss,”” Mark told Law&Crime – referencing a sentiment first noted by Ralph Waldo Emerson and later popularized by the character Omar Little on HBO’s hit series The Wire. “The charges against Trump will survive dismissal. The charges are detailed and particularized, as RICO indictments must be, and their underpinnings are simple: it’s illegal to try to overturn an election, and any actions taken in furtherance of that scheme constitute predicate acts under RICO.”
Two days after the indictment, Mark Meadows, the former chief of staff for then-President Trump, who is charged with two counts, filed a notice arguing that the case against him should be dismissed.
The Meadows notice argued none of his alleged conduct “is criminal per se” and that any such actions occurred “under color of his role as Chief of Staff to the President of the United States.”
Etan Mark suggested the Meadows effort is likely a preview of Trump’s sure-to-be-filed motion to dismiss – but that any such efforts are likely to prove unsuccessful for either of the defendants.
“No doubt, Trump will try to argue – as Meadows has argued in his motion to dismiss – that the actions he is accused of taking were simply acts taken in furtherance of his role as the President, or in Meadows’s case, the chief of staff,” the RICO expert told Law&Crime. “But even facially appropriate conduct taken in furtherance of a larger scheme to defraud can still form the basis of a RICO claim. At its core, that is what it means to participate in a conspiracy.”
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In other words, the defendants’ roles at the time, don’t have much bearing on whether a crime was committed and don’t provide much of any legal insulation, the expert said.
“Put another way, if a group of people decides to participate in a flash mob because they want to record a TikTok video and become famous, there is nothing illegal about it,” Mark explained. “But if a group of people decides to participate in a flash mob to create a diversion for a getaway car, it is illegal. So motive matters as does the effect of the conduct. Here, the indictment refers to significant evidence suggesting that the purpose of these meetings, phone calls, and communications was to illegally overturn the results of an election, not to schedule a brunch and discuss UGA football.”
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Along with everyone else charged in the Fulton County indictment, Trump and Meadows are accused of violating Georgia RICO law by being part of a criminal enterprise which “refused to accept that Trump lost, and […] knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.”
Mark also noted the potential for the case to removed to another court. Again, the Meadows motion to dismiss is likely instructive.
In his motion, the 29th White House chief of staff cited a federal statute which says a “criminal prosecution that is commenced in a State court and that is against or directed to” any officer of the U.S. “may be removed by them to the district court of the United States.”
“Whether the Court decides to punt this case to Federal Court or not, absent a plea deal (which seems very unlikely), there will be a trial of this matter sometime in the next 18 months,” the RICO expert predicted. “At that time, I expect that a compelling story will be told.”
On Aug. 16, Willis requested a trial date of March 4, 2024 – eight days before the Peach State’s presidential primary. Widely-viewed as a placeholder, the trial is unlikely to commence on that date.
Matt Naham contributed to this report.
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