🎶 The devil went down to Georgia he was looking for some votes to steal. He was in a bind cause he was way behind and he was willing to make a deal.🎶
Put on your nerd glasses for this one. We’re diving into the legal documents.
(I asked my readers once what I should call my analysis of legal documents and my favorite answer was “Over the Cliff Notes.”)
The Georgia Indictment (Attempt to Overthrow the 2020 Election in Georgia)
Before I get started with the indictment itself, I will quote Scott R. Anderson, Saraphin Dhanani, Yang Liu, and numerous others who wrote this for Lawfare:
Upside: If you have felt frustrated and you want your moment of schadenfreude, here it is.
Downside: It is unlikely this case will come to trial before the election. Anthony Michael Kreis, a law professor in Atlanta who is an expert on local law, says that just seating a jury in a Georgia RICO case can take months. Given the nature of the charges (and the number of defendants), he thinks there is basically no way that the trial will be held before the election.
Note: While it’s an imposing document, some of the crimes alleged carry light sentences, and a recent Georgia Supreme Court case held that even if the statute requires prison time, a court can order probation. In other words, first offenders of lesser crimes are likely to get probation.
The indictment is here.
Here is the list of people charged (with a few brief comments):
- Donald Trump: This is his 4th indictment after the Manhattan hush money indictment, the DOJ indictment for trying to overthrow the 2020 election, and the DOJ stolen documents indictment. In addition, the Trump Org has already been indicted, tried, and convicted of 17 felonies.
- Rudy Giuliani: Trump’s personal lawyer is also “Unindicted Co-conspirator #1” in the DOJ’s Attempt to Overthrow the Election case.
- John Eastman: Another lawyer advising Trump and former Chapman Law prof, he’s also Unindicted Co-conspirator #2 in the DOJ’s Attempt to Overthrow the Election case.
- Mark Meadows: Trump’s former White House Chief of Staff.
- Sidney Powell: Another lawyer advising Trump, she is also Unindicted Co-conspirator #3 in the DOJ’s Attempt to Overthrow the Election case. She helped arrange for a forensic team to have the Coffee County computers.
- Kenneth Chesbro: Yet another lawyer advising Trump, he is also Unindicted Co-conspirator #5 in the DOJ’s Attempt to Overthrow the Election case.
- Jeffrey Clark: A lawyer and DOJ official, he is also the Unindicted Co-conspirator #4 in the DOJ’s Attempt to Overthrow the Election case.
- Jenna Ellis: Another lawyer advising Trump. She joined Giuliani on December 3 and lied to Georgia lawmakers.
- Ray Stallings Smith: One of Trump’s lawyers involved in the fake elector scheme
The fake elector scheme was a complicated plot invented by those in Trump’s closest circle and pushed by Trump. Presidential elections are decided by the electoral college. The idea was to present fake Trump electors to Congress from states Biden won either to outright overturn the election on January 6 or to give Pence and the GOP members of Congress a pretext to stall certifying the election for Biden.
- Robert David Cheeley: A local lawyer who presented falsified video clips to Georgia lawmakers purporting to show that election workers were engaged in fraud.
- Michael Roman: Trump’s former White House aid and director of Trump’s election day operations. He was involved in the fake elector scheme.
- David Schafer: Chairman of the Georgia GOP, involved in the fake elector scheme.
- Shawn Still: Finance chair for the Georgia GOP, one of the fake electors.
- Stephen Cliffgard: A pastor, harassed Ruby Freeman and her daughter and falsely accused them of engaging in voter fraud.
- Willie Floyd: Accused of arranging a meeting with Freeman and a Chicago-based publicist, Kutti.
- Trevian Kutti: She is Kanye West’s publicist who is accused of pressuring Freeman to falsely confess to election fraud.
- Cathy Latham: Chair of the Coffee County GOP involved in the fake elector scheme. She allowed a computer forensic team unauthorized access to the voting machines.
- Scott Graham Hall: An Atlanta-area bondsman accused of commandeering voting information that was the property of Dominion Voting Systems from Coffee County.
- Misty Hampton: Also alleged to be part of the scheme to commandeer voting information.
But Teri! Why wasn’t ___ also indicted?
If someone wasn’t indicted and you think there was evidence linking them to the crime, the most likely reason they are not on the list is there wasn’t enough evidence against them to secure a conviction. Another way to say the same thing: The person had such a strong defense that DA Fani Willis concluded that the person would probably prevail at the trial. A number of the fake electors were selected for an offer of immunity in exchange for cooperation. No doubt, Willis selected those with the least culpability or those with good defenses.
Prosecutors don’t like to lose. It’s a waste of government resources and they lose credibility.
How to Read the Georgia Indictment
The indictment alleges 41 criminal charges under numerous statutes. Count 1 is the big one.
Count 1: RICO
Count 1 charges subdivision (c) of the RICO statute, which is to “conspire” or to violate RICO. This count takes us from page 13 to page 72. It’s the meat of the indictment. The other 40 charges are mostly listed in single paragraphs.
To get a conviction under Georgia’s RICO statute, the prosecution has to prove that the defendants committed two or more acts of racketeering activity. While the federal conspiracy requires a mutual understanding between co-conspirators, Georgia’s Rico statute basically just requires a bunch of people all working toward the same illegal goal. Professor Volkan Topalli, who teaches criminology at Georgia State explains it this way: The state’s RICO law creates a “whirlpool effect” for cases charging criminal conspiracies. “If you capture one person in the whirlpool, everyone else gets sucked in along with them.”
I’ve described conspiracy in the same kind of terms. Conspiracy offers prosecutors a wide net. My former mentor Mark Reichel calls conspiracy “the darling of the prosecutor’s garden.”
Georgia’s RICO statute operates much the same way: Like the conspiracy statute, it’s a bit loosey-goosey, offering prosecutors a wide net. In this indictment, we have a conspiracy to violate the Georgia RICO, which is like an extra wide net.
Proving conspiracy requires the prosecutor to prove each of these elements beyond a reasonable doubt:
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- Two or more people agreed to commit a crime.
- All conspirators had the specific intent to commit the crime.
- At least one of the conspirators committed an overt act in furtherance of the conspiracy.
For a review of “specific intent” see this post. The “overt action” (the actus reus) is there to make sure we don’t criminalize ideas or thoughts.
The introduction to the RICO charge on page 14 sums up the allegations:
First, we get a description of the criminal “enterprise”
This is from page 14:
The goal of the enterprise was to overturn the election in Georgia.
Next, we get a description of the 8 methods used by members of the enterprise to achieve their goal.
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- The members of the enterprise lied to and solicited members of the state Legislature. (Specifically, they lied about the existence of fraud and tried to persuade the legislature to call the state for Trump.)
- They made false statements to and solicited high ranking state officials to ignore their oaths of office.
- They created fake electoral documents.
- They harassed and intimidated election worker Ruby Freeman to try to get her to falsely admit that she engaged in election fraud.
- They solicited members of the Department of Justice for help in lying about fraud in the Georgia election.
- They solicited Pence, telling him he had the authority, as Vice President presiding over Congress, to reject the Biden electors and accept the fake Trump electors. (He didn’t have that right.)
- They unlawfully breached the election equipment in Coffee County, Georgia.
- They engaged in obstructive acts in furtherance of the conspiracy and to cover up their illegal activity, including perjury.
The indictment then lists 161 “acts in furtherance” of the conspiracy.
Some of these acts are crimes in and of themselves. Most of the acts listed are simply overt acts in furtherance of the goal, as required by section (c) of the Georgia RICO. Here’s an example of how the indictment weaves Trump’s public statements with what was happening behind the scenes with an actual crime, conspiring to illegally breach the Coffee County voting machines:
Act 31
On or about the 5th day of December 2020, DONALD JOHN TRUMP placed a telephone call to Georgia Governor Brian Kemp and solicited, requested, and importuned Kemp to call a special session of the Georgia General Assembly. This was an overt act in furtherance of the conspiracy.
Act 32
On or about the 6th day of December 2020, DONALD JOHN TRUMP caused to be tweeted from the Twitter account @RealDonaldTrump, “Gee, what a surprise. Has anyone informed the so-called (says he has no power to do anything!) Governor @BrianKempGA& his puppet Lt. Governor @GeoffDuncanGA, that they could easily solve this mess, & WIN. Signature verification & call a Special Session. So easy!’ This was an overt act in furtherance of the conspiracy.
Act 33
On or about the 6th day of December 2020, SIDNEY KATHERINE POWELL entered into a written engagement agreement with Sullivan Strickler LLC, a forensic data firm located in Fulton County, Georgia, for the performance of computer forensic collections and analytics on Dominion Voting Systems equipment in Michigan and elsewhere. The unlawful breach of election equipment in Coffee County, Georgia, was subsequently performed under this agreement. This was an overt act in furtherance of the conspiracy.
Mixing actual crimes with more mundane acts allowed the indictment to tell the entire story of how these defendants engaged in a complex multi-pronged attempt to overturn the election. It also gave rise to some hilarious right-wing talking points, like this:
Giving legal advice, of course, isn’t charged as a crime. The legal advice Ellis gave was one of the acts in furtherance of the conspiracy to violate the Georgia RICO. Either Jim Jordan couldn’t figure this out or he is intentionally trying to mislead the public. (You pick.)
Now that the Georgia indictment watch is over, we are in the pretrial motions phase. We even have our first pretrial motion from Mark Meadows, Trump’s former Chief of Staff.
Mark Meadow’s Motion to Remove His Case to Federal Court
I grew so accustomed to reading garbage legal filings from Trump and his pals that I was startled to read Meadow’s motion to remove his case to federal court. It was a solid piece of work arguing why he should be tried in federal court instead of state court.
You can read his motion here.
Note: this is a jurisdictional question. The issue is which court should hear the case.
But why would he want to go to federal court?
The same laws apply, so it seems to me that the biggest advantage for him to move to federal court would be the possibility of a more sympathetic jury pool. When he filed the motion, he probably also hoped for a MAGA judge (like Aileen Cannon in the Southern District of Florida) but instead, he drew an Obama appointee, Judge Steve Jones, who is definitely not a MAGA judge. The good news for the prosecution is that any others who try to remove their case to federal court will probably see their cases also assigned to Judge Steve Jones.
Another advantage to federal court: Meadows would be severed from the other defendants. Meadows has two counts against him: the general conspiracy to violate RICO and Solicitation of Violation of Oath by a Public Officer. He no doubt considers the case against him weaker than against other defendants. Yet another advantage: federal courts are often further removed from local politics. The judges are often more experienced with the kinds of defenses Meadows is likely to raise.
If Meadows moves his case to federal court, does this mean he could get a federal pardon?
Nope. The same law applies. He’s just in a different court.
The statute that allows for criminal cases to be removed to federal court is U.S. 28 U.S. Code § 1442 (1) which states that removal is proper if:
Translation: If Meadows is being charged for something he did while acting under color of his federal office, the case belongs in federal court. This is called the “federal officer removal” doctrine. The purpose is to prevent states from meddling with federal operations, which could happen if states were allowed to prosecute state officials for the execution of their official federal duties.
Trump tried this argument and failed when he wanted to move the hush money case out of Manhattan. He argued that he was president when he committed the alleged crime, therefore, the case belonged in federal court. The courts said nope: Paying hush money to porn stars just before the election was not one of his official duties as president, so he had to stay in state court.
Similarly, Trump is likely to lose if he tries a similar motion in Georgia because the president has nothing to do with elections, particularly state elections. The Constitution allows Congress to regulate elections. (This, by the way, maybe why Lindsay Graham wasn’t charged. He called people in Georgia and asked questions, but he could defend himself by saying he was gathering information as a member of Congress who has the authority to propose laws regulating federal elections in states. Congress also votes to certify the electors, so he could have defended himself by saying he was asking questions to prepare for the Congressional vote.)
In his motion to remove his case to federal court, Mark Meadows argued that the overt acts he is accused of in the indictment were done “under color of his role as Chief of Staff to the President of the United States.”
Meadows facilitated meetings. He facilitated conversations. He relayed messages from Trump to the others. He went on errands at Trump’s request.
So this is the “I was just following orders defense?”
No. He is arguing that under the requirements of the statute when he did the things he did, he did them because he was Chief of Staff, therefore, his criminal trial belongs in federal court.
Willis will probably argue that he did these things (setting up meetings, facilitating conversations, etc) while part of a criminal enterprise and therefore not under color of his federal appointment.
For example, take this act:
On or between the 1st day of December 2020 and the 31st day of December 2020, DONALD JOHN TRUMP and MARK RANDALL MEADOWS met with John McEntee and requested that McEntee prepare a memorandum outlining a strategy for disrupting and delaying the joint session of Congress on January 6, 2021, the day prescribed by law for counting votes cast by the duly elected and qualified presidential electors from Georgia and the other states.
What Meadows is accused of doing is rather vague. Was Meadows just there as a sort of clerk or assistant to Trump? Or was Meadows also asking for this memo? Because Trump most likely did the talking, it is likely Meadows will say he was just there to facilitate the meeting and Trump requested the memo on how to disrupt the voting in Congress. (This is basically what happened in Trump’s call to Raffesnperger. Trump talked. Meadows helped him out by summarizing what he was saying.)
The removal statute also requires that Meadows have a “plausible” federal defense. The defense he offers is a federal immunity defense under the Supremacy Clause of the Federal Constitution, which protects state and local officials from liability, even when they act unlawfully, so long as their actions do not violate “clearly established law.” The reason it exists is that it prevents officers of the federal government from being harassed for doing their jobs.
Will this defense work? Probably not, but for his purposes here, it doesn’t matter. All that matters is that, if he wants to get into federal court, he needs a “plausible” federal defense.
Meadows also informed the court that another defendant will be filing a motion to remove their case to federal court. My guess is that it is either Jeff Clark (who was a DOJ official at the time) or Trump (because Trump will try anything even though his argument for removal will be laughable.)
Adding: People are misreading and thinking I am saying his motion to remove is unlikely to succeed. Nope. I’m not saying that. I’m saying that ultimately his immunity clause defense is unlikely to succeed, but his motion to remove may very well succeed.
Fani Willis proposed this schedule:
- Arraignment: September 5.
- The final pretrial conference: February 20, 2024.
- The trial shall commence on March 4, 2024.
As I said earlier, it is highly unlikely this will happen.
Trump’s Manhattan case is scheduled for March 25, 2024, and his stolen documents case is scheduled for May 20, 2024. The parties are now negotiating the trial date for the J6 federal trial.
You can see that Trump’s dance card is getting full. What a popular guy. He’s wanted in so many jurisdictions.
Speaking of Trial Schedules . . .
We have two more absurd Trump court filings.
Absurd filing #1
Recall that the DOJ proposed that jury selection for the federal J6 trial to begin on December 11, 2023, and the trial to begin on January 2, 2024.
Trump’s response is here. He wants the trial in April of 2026. Yes, you read that right. April of 2026. He will not get this, particularly because the reasons he offers are beyond silly. He says, for example, that if it took the DOJ 2.5 years to put the case together, he should get 2.5 years to prepare a defense. It obviously doesn’t work that way.
Absurd filing #2
This one is really weird. He filed this document with Judge Cannon in Florida (she’s the judge overseeing the stolen documents case who keeps ruling in his favor). It’s called “Notice Regarding Filing in a Separate Case,” which isn’t a thing. This form of filing, which never before existed, can be called the Tattletale Filing.
From Trump’s filing:
First, the “Your Honor” stuff is odd. Usually legal documents refer to “the court.” The issue is that the DOJ suggested that jury selection begin on December 11, 2023, for the D.C. J6 case, and this was the date Cannon scheduled a hearing on any motions submitted in October and November.
Also from’s Trump’s filing:
What does Trump want Judge Cannon to do about this?
Respectfully, the Special Counsel’s conduct necessitates appropriate action by Your Honor.
The appropriate action is evidently this:
So Trump wants Judge Cannon to hold a hearing in which she calls Special Counsel Jack Smith out on the carpet to explain how he had the temerity to propose December 11 for the start of jury selection in the D.C. case when that is also a date on her calendar for the stolen documents case.
Me = 🤦♀️
How things work: If the D.C. Judge (Chutkin) accepts the DOJ’s proposed schedule, it is then up to Trump’s lawyers to say, “The December 11th date is a problem” and ask that, say, it be moved to December 12. Moreover, because Trump will likely not go to a motion hearing, there is nothing wrong with having two different hearings in different proceedings. He just may need more lawyers.
It is not, to say the least, the government’s job to figure out how Trump is going to solve the problem of being prosecuted in so many different jurisdictions.
Of course, everything JJ does is under color of his office as a ferocious watchdog, which makes him eligible for qualified immunity for any alleged transgressions.
