If there’s one thing that can be said about the sprawling, 41-count grand jury indictment that has been returned against former President Donald Trump and 18 of his supporters, it’s that Fulton County District Attorney Fani Willis – the Atlanta-based prosecutor who assembled the case – is swinging for the fences.
The case is built around a so-called RICO charge, which is a tool that has been used with increasing boldness by local prosecutors around the country, especially in Fulton County. Georgia’s version of the law, because it is written so broadly, makes it a particularly potent charge.
“It’s a type of criminal liability that you can get in trouble for things that other people do,” said Ashleigh Merchant, a Georgia criminal defense attorney with experience in RICO cases.
Legal analyst: RICO charge puts Trump at odds with his counsel
Willis has said she plans to try all 19 defendants at once, a strategy that will undoubtedly lead to extremely lengthy and complicated proceedings, but one that could give her office certain advantages. She is seeking a trial date of March 4, 2024.
And she’ll be navigating around a federal prosecution of Trump for his 2020 election reversal schemes that has taken a much narrower approach.
Willis’ audacious strategy will be tested in what will be an aggressive defense put on by lawyers for Trump and by counsel representing the other more, well-heeled defendants.
It will present novel questions of law, and Willis, in how she has structured her case, runs the risk that at least some of the defendants will be able move the proceedings against them to federal court, where the legal playing field might be better for them.
Here are the strengths and weaknesses of Willis’ strategy:
Georgia’s version of a RICO law – which stands for Racketeer Influenced and Corrupt Organizations Act – is broader than the federal counterpart. By using it, Willis is able to sweep in conduct that by itself is not necessarily criminal, and with it, a larger cadre of defendants.
“You have this very wide, wide net and you get very, very little fish – who weren’t intended to get stuck in there – get stuck in there,” said Sandy Wallack, a criminal defense attorney in Georgia with experience in RICO cases.
The indictment describes 161 individual episodes that Willis says were overt acts in service of the larger conspiracy to overturn Trump’s electoral loss in the state. Some of the allegations she describes amount to standalone crimes on their own – and are charged additionally as such. But many of those acts pertain to alleged conduct that’s not in and of itself criminal, and may even be, in other contexts, considered protected speech. For instance, the indictment cites several of Trump’s tweets and public remarks hyping bogus claims of election fraud.
Ex-Trump White House attorney says Trump’s new ‘report’ could backfire
Yet the Georgia RICO statute requires just two predicate criminal acts to establish the type of racketeering enterprise that then nets in anyone who aided the larger conspiracy.
Willis’ reliance on RICO also allows her to get around certain evidentiary rules. Defendants will be contending with evidence related to conduct they were not even a part of or would be left out under the evidence rules that would apply in non-RICO cases.
If convictions on the RICO charges are secured, the statute drastically increases the possible maximum sentence the case’s defendants would be facing – with the law allowing for a 20 year maximum in some circumstances.
A defendant who might have otherwise faced a five-year maximum for a false statement charge (a sentence that would likely been whittled down significantly on the back end by the state’s Parole Board) could now be subject to up to many more years prison because that conduct was wrapped up into a RICO conviction.
In addition to the RICO charge, which sweeps in all 19 defendants in the indictment, Willis case is made up of several additional standalone charges, some of them on firmer ground than others, legal experts told CNN.
The Georgia computer fraud statute used to charge the some of the defendants accused of breaching voting data systems in Coffee County is very broad, according to Andrew Fleischman, a criminal defense attorney in Georgia, increasing Willis’ chances of conviction.
But he and other legal experts said Willis is stretching with her use of the solicitation of violation of oath by public officer to prosecute Trump and his allies for their efforts to persuade Georgia officials to overturn the results. The indictment alleges that Trump and his allies, in their calls that Georgia lawmakers act to appoint alternate slates of electors, were requesting that the lawmakers take actions that would violate their oaths to support the state and US constitutions.
“People ask the General Assembly to do unconstitutional stuff all the time,” Fleischman said.
Giuliani says he’s ‘more excited’ now after being indicted. Hear why
Already, former White House chief of staff Mark Meadows launched what is expected to be a major pre-trial fight in the case.
He is seeking to remove the case against him to federal court while arguing that federal law shields individuals from state law prosecutions for conduct they perform “under color” of the US government.
Opinions ranged among criminal defense attorneys in Georgia about whether such removal motions will be successful.
While removal proceedings happen all the time in civil cases, and the case law in that scenario is very well established, “criminal removal is very rare – especially in cases with multiple defendants,” said Steve Vladeck, a CNN Supreme Court analyst and University of Texas School of Law professor, who clerked for the 11th US Circuit Court of Appeals, which covers Georgia.
Because there is little precedent, it is extremely unclear how one defendant’s removal bid would affect the rest of prosecution and whether it would force the entirety of the case to play out in federal court.
Additionally, there is not much appellate case law around the state’s RICO statute, criminal defense attorneys in Georgia told CNN.
That means the judge overseeing the case, Georgia Superior Court Judge Scott McAfee, might not necessarily have an appellate precedent that would guide how to resolve certain legal issues raised by the defendants. The uniqueness of the election subversion prosecution, by itself, also increases the likelihood of matters of first impression that could throw wrenches into Willis’ prosecution.
Willis said Monday evening that she intends to try the 19 defendants together. Such a vow – and how it would guarantee for the case to be a protracted slog – cuts directly against her plans to seek a trial date that would start the trial within six months.
But trying the defendants together would present other upsides for her office.
It is a strategy that Willis is employing in the major RICO case, currently in jury selection, she has brought against a group known as “YSL” that prosecutors alleged to be a criminal street gang.
For one, it would allow for the largest possible swath of evidence that could be put before one jury.
It could also increase the chance that some defendants – particularly those who don’t want to go to trial in a case where they’d be mounting a defense alongside Trump – take plea deals.
“If you’re thinking about someone who is tangentially involved, do you want to be sitting at the table with Donald Trump?” Merchant said. “You don’t want to be at the table.”
The contrast between Willis’ massive indictment – with its aggressive use of certain statutes, its long list of defendants and the wide array of alleged conduct it covers – was a stark contrast to special counsel Jack Smith’s approach.
Smith charged Trump by himself, bringing four charges against the former president. The federal grand jury indictment includes an introduction that acknowledges Trump’s right to make public statements, even false ones, about fraud in the election, while distinguishing that with Trump’s allegedly “unlawful” means for overturning the results.
Reporter describes how Trump acted in courtroom during arraignment
“Jack Smith decided to go with one defendant, keep it simple, keep it straightforward,” said Clark Cunningham, a law professor at Georgia State University. Smith is seeking a trial in his case that would start an early January – a proposal that is ambitious, but more plausible than Willis’ claim that she could take her much more complicated case to trial within six months.
“I don’t know that she ever expected to be able to go to trial quickly on this matter. But proceeding in this way makes it very unlikely, I think, that you that you’ll go to trial before the general election,” Cunningham said.
It’s not only about the dueling trial schedules, and how they would interact with Trump’s own busy calendar of other legal proceedings and the 2024 campaign. There stands to be a significant overlap in evidence – including with testimony from some of the same witnesses – in the federal and Georgia cases.
Once a witness testifies in one trial, they will be essentially locked in what they said on the stand there or invite the risk of perjury. The dynamic cuts towards not just the witnesses for the prosecutions, but towards defense witnesses as well.
The two prosecutions proceeding along at the same time creates the potential for a “hot mess,” Merchant said.