Georgia indictment of Trump does something ingenious

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When the Fulton County, Ga., district attorney, Fani Willis, filed criminal charges against Donald Trump and over a dozen of his allies for their attempt to overturn Georgia's 2020 presidential election results, she did something ingenious.

In contrast to the special counsel Jack Smith's latest laser-focused federal indictment of Trump, Willis charges a wide range of conspirators, from people in the Oval Office to low-level Georgia GOP functionaries, and is the first to plumb the full depths, through a state-focused bathyscaph, of the conspiracy.

Her case also provides other important complements to the federal matter: Unlike Smith's case, which will almost certainly not be broadcast because of federal standards, hers will almost certainly be televised, and should Trump or another Republican win the White House, Willis's case cannot be immediately pardoned away. It offers transparency and accountability insurance. As she said in her news conference on Monday night, "The state's role in this process is essential to the functioning of our democracy."

But the indictment stands out, above all, because Georgia offers uniquely compelling evidence of election interference — and a set of state criminal statutes tailor-made for the sprawling, loosely organized wrongdoing that Trump and his co-conspirators are accused of engaging in. It is a reminder of the genius of American federalism: When our democracy is threatened, states have an indispensable part to play in protecting it.

At 98 pages, Willis's indictment is more than twice the size of Smith's indictment in his Jan. 6 case and contains 19 defendants to his one. The indictment charges 41 counts (to Smith's four) — among them, Georgia election crimes like solicitation of violation of oath by public officer (for Trump's infamous demand to Georgia's secretary of state, Brad Raffensperger, to just "find 11,780 votes") and state offenses like forgery and conspiracy to commit forgery (for creating fake electoral certificates) and conspiracy to commit computer trespass (for unlawfully accessing election machines in Coffee County to attempt to prove that votes were stolen).

Willis ties them all together by levying one charge against Trump and each of the 18 other defendants under Georgia's Racketeer Influenced and Corrupt Organization Act, or RICO, accusing Trump and his co-conspirators of functioning as a criminal gang.

American law has long recognized through the crime of conspiracy that combinations of criminals are more dangerous than lone wolves. RICO is conspiracy on steroids, providing for stiffer penalties and other advantages like bringing multiple loosely connected conspiracies under one umbrella.

Georgia has one of the most capacious RICO statutes in the country. The state's legislature enacted it specifically to "apply to an interrelated pattern of criminal activity" and mandated courts to "liberally construe" it to protect the state and its citizens from harm. Under the law, prosecutors can charge a sprawling criminal enterprise and even include individuals who may not have known "of the others' existence," as one court put it.

Here, the statute may be triggered by violations of an array of federal crimes as well as over 40 charges specific to Georgia, including forgery, false statements and influencing witnesses.

Georgia RICO has become Willis's signature. She applied it in cases like the Atlanta teacher cheating scandal, in which educators engaged in a wide-ranging scheme to inflate scores on standardized tests, and the prosecution of the rapper Young Thug, in which he co-founded a street gang that was accused of committing almost 200 criminal acts.

The overall charge includes four core schemes. The first was to pressure government officials to advance the objective of securing Georgia's electoral votes for Trump, even though he lost. For the evidence here, in addition to Trump's call to Raffensperger, Willis details other efforts by Trump and his co-defendants — including Giuliani's pressuring of state legislators, Meadows's pressure on election authorities and the co-conspirators' lies and intimidation targeting the ballot counters Ruby Freeman and Wandrea Moss, who goes by Shaye. This also includes efforts in Washington that affected Georgia, such as the Department of Justice lawyer Jeffrey Clark's preparation of an allegedly fraudulent draft letter targeting the state.

The second scheme was the organization of electors falsely proclaiming that Trump was the winner in Georgia. Willis alleges that Trump personally participated in this effort; for example, he called the Republican National Committee with Eastman from the White House to organize the fake slates of electors, including in Georgia. And she charges a great deal of other activity in and outside Georgia.

The third scheme was the unlawful accessing of voting machines in Coffee County, a rural county southeast of Atlanta. The indictment asserts that, after a White House conversation about getting access to election machines to prove supposed vote theft, Sidney Powell, a lawyer tied to Trump, along with Trump campaign allies and computer consultants, conspired to gain access to voting equipment in Coffee County.

Willis's inclusion of that plan spotlights what has been one of the more neglected aspects of the nationwide effort. Smith does not even mention it in his federal indictment. Yet the Willis indictment alleges that this was part of a plan discussed (in general terms) in the Oval Office.

The fourth and final scheme is what has become a trademark allegation against Trump and his circle: obstruction and cover-up. Willis alleges that members of the conspiracy filed false documents, made false statements to government investigators and committed perjury during the Fulton County judicial proceedings.

Trump has already begun to defend himself, trying to get Willis and her special grand jury disqualified, based on an array of supposed conflicts and other grievances. The Georgia courts have already repeatedly rejected those arguments. He will also probably employ defenses similar to ones he and his legal team have laid out in pending criminal matters elsewhere, seeking removal to federal court and advancing First Amendment and intent defenses that have been picked apart by many legal experts.

He and his co-conspirators may attempt to challenge the RICO charges on technical grounds, for example, arguing that the conspiracies are not sufficiently related under the statute. But Willis powerfully alleges otherwise, in particular emphasizing the unifying objective of Trump's wrongfully seizing Georgia's electoral votes.

That all of this is likely to play out on television only deepens the historic nature of the indictment. Georgia law makes generous allowance for court proceedings to be broadcast, with the state rightly considering open courtrooms to be "an indispensable element of an effective and respected judicial system." Assuming that rules against televising federal trials stand, the Georgia trial would be the only one that the public could watch as it unfolds. We know from the Jan. 6 hearings — as well as, in an earlier era, the Watergate hearings — the power of seeing and hearing these events. And they will remain for viewing in posterity as a lesson in the rule of law.

There is one final important advantage of the Georgia case. It is shielded from what may be Trump's ultimate hope: the issuance of a pardon should he or another Republican be elected president in 2024 (or a command by a Republican that the Justice Department simply drop the case). A president's power to pardon federal offenses does not extend to state crimes.

And pardons in Georgia are not an unreviewable power vested solely in the chief executive. They are awarded by the State Board of Pardons and Paroles — and are not even available until five years after completion of all sentences.