Tuesday Talk*: Did The Georgia Indictment Push Too Far?

Georgia criminal defense lawyer and former Fault Lines colleague, Andrew Fleischman, explains in a New York Times op-ed some of the legal and tactical problem arising from the scope and breadth of the Georgia indictment against Trump and his 18 co-defendants.

By assembling a sprawling, 19-defendant RICO indictment with 41 counts, District Attorney Fani Willis of Fulton County has brought the sort of charging instrument that has typically led to monthslong trials, complicated appeals and exhaustion for the participating attorneys. Now, as some co-defendants seek federal removal while others demand speedy trials in state court, we are starting to see the costs of complexity.

For many, it is a satisfying political document. But as a legal instrument, its ambitious scope will provide the co-defendants with many opportunities for delay, appeals, and constitutional challenges.

Fani Willis did what Jack Smith strategically chose not to do, wrap all the accusations against all the players up in one overarching indictment. It provides a breathtaking overview of the putative crimes that occurred in Georgia, and to some extent elsewhere as well. But as much as many non-lawyers are happy to gloss over the nasty details of these offenses, such as their elements and mens rea, in their “obvious” conclusion that he’s guilty, there are very real issues that will be exposed by the defense and potentially exploited. Even if Trump ultimately loses on his myriad arguments about the constitutionality and nuts and bolts of the allegations, it will give rise to significant potential delays to fight over legitimate legal questions.

Solicitation requires you to ask someone else to commit a felony intentionally. In this case, the oath of office the defendants were being asked to violate was a promise to follow the Constitution and do what’s best for their constituents. It is indeed a crime in Georgia for a public officer to “willfully and intentionally” violate the terms of his oath.

Here’s the problem: It’s hard enough to prove that Mr. Trump’s request violates the Constitution, since the Constitution allows states to figure out how to select electors. But then the state must also prove that Mr. Trump knew this would violate the electors’ oath of office.

It seems possible that Mr. Trump had no idea what these officials’ oath of office was, maybe even no idea that they swore an oath at all. Under Georgia’s “mistake of fact” affirmative defense, if Mr. Trump has some evidence that he was operating under a “misapprehension of fact” that would justify his actions, the state must disprove it beyond a reasonable doubt.

Then there are the problems raised by 19 defendants who run in different directions.

And it’s not just the charges that complicate things, but the sheer number of defendants. A judge granted one co-defendant, Ken Chesebro, a speedy trial, which will require Fulton County to bring this case to trial by Nov. 3 or acquit him as a matter of law. (Sidney Powell has also requested a speedy trial.)

Will Chesebro’s (and Powell’s?) trials provide Trump’s defense team, which has sought far more time to prepare for trial, with the prosecution’s road map so they can prepare for it when his turn comes?

So it is an odd legal choice to drag a jury through weak, disputed counts in a monthslong trial when you could just focus on the counts that are hard to challenge and easy to explain, saving weeks in the process. The RICO count will already require dozens of witnesses and some complicated instructions, so tossing in these oath of office charges seems like a recipe for confusion and delay.

Other than filling the hearts of Trump’s haters with joy at knowing that he was charged with RICO, will this expansive strategy end up backfiring on Fani Willis, who bit off more than she can chew, or at least more than she can chew in time for any of it to matter?

But there are a dozen ways that things can go sideways, and it is very possible that history will remember the two years that Fulton County took to bring these charges as a wasted opportunity to make a simpler case.

Was it necessary to charge Trump and gang with everything possible, or will this end up being too broad, too numerous, too complex, even if Trump is eventually convicted of something if not everything in Georgia?

*Tuesday Talk rules apply, within reason.