However, she now might be on the precipice of undoing much of her good work and harming her own reputation. Before proceeding with an indictment (which could come as early as next week), Willis might want to consider a simple rule of thumb for all prosecutors: Less is more.
Based on news accounts and blabbing from the special grand jury forewoman, Willis seems poised to indict not only Trump but a whole flock of people — perhaps more than a dozen — including aides, lawyers and phony electors. That alone will make for a complicated, time-consuming trial, likely exacerbated if conflicts of interest arise from the same lawyer representing multiple people.
It is not necessary to do this. Just as Smith indicted Trump alone, leaving other potential defendants to contemplate their fates and maybe cut deals, Willis could do the same. There will be plenty of time to bring others to trial.
On the merits, she certainly could bring charges for breaches of state law, such as solicitation to commit election fraud, intentional interference with performance of election duties, interference with primaries and elections, and conspiracy to commit election fraud.
These charges, essentially the state counterpart to Smith’s four-count federal indictment, would not be exotic or difficult for a jury to understand. There are a discrete number of witnesses centering on Trump’s calls to Georgia officials and his allies’ interaction with phony electors. As a Brookings Institution report suggested, “While the elements vary, the gravamen of these offenses is that through conduct such as the [Georgia Secretary of State Brad] Raffensperger call demanding the state ‘find 11,780 votes’ and his apparent involvement in the false-electors plan, Trump was clearly exhorting Georgia officials to get them to change the lawful outcome of the election.”
However, reports suggest Willis has something far more complicated in mind: Pursuing Trump under Georgia’s RICO (Racketeer Influenced and Corrupt Organizations Act) statute. As a preliminary matter, Willis would be fully within her authority and in adherence with her ethical obligations if she has sufficient facts to prove such a charge beyond a reasonable doubt. The questions are whether it is wise to do so and whether, combined with the number of defendants, she is heading for an overstuffed case that would take far longer than any of the other Trump indictments (or frankly, all indictments combined) to get to trial and then to a verdict.
The Georgia RICO Act requires the prosecutor to prove there is a criminal enterprise engaged in “racketeering activity.” Brookings explained, “The statute is broader than its federal counterpart. It lists over 40 predicate crimes or acts under state and federal law that constitute ‘racketeering activity’ to trigger the statute’s application.” In short, “‘Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment’ under certain specified categories of laws.” And that exceptionally broad and somewhat amorphous language should raise a red flag.
The statute requires the prosecutor to show two predicate acts (i.e., crimes). Sure, one can theoretically dream up a whole list of predicates to establish a RICO case but, again, she would be faced with proving crimes — e.g., falsification of documents — beyond a reasonable doubt and proving they were part of the criminal enterprise. Does she intend to include as a predicate act Trump’s conduct well outside Georgia (in Michigan or Arizona, for example)? She then would be compelled to go far afield, finding even more evidence to convict Trump. (Beyond that is the difficulty in defining the “enterprise”: his campaign, the entire administration?)
You can bet Trump’s lawyers will argue that she’s trying to use a mafia crime statute beyond the intent of the law and/or claim that the law is so broad and vague as to raise constitutional issues. Trump’s counsel might also argue criminalizing a campaign or an entire administration raises federal preemption issues. Willis undoubtedly has responses and can point to uses of the law in other public corruption cases, but why chew up the time and risk a setback?
If her aim is to secure a conviction swiftly, this is not the way to do it. Of course, if she is content for other cases to go first, she might not mind a case that takes a year or more to get to trial.
That gets to the nub of the issue: Simply because a RICO claim is possible and would sweep in lots of bad conduct does not mean it’s a smart strategy. Former prosecutor Joyce White Vance told me: “One of the challenges prosecutors face in indicting cases that involve extensive or complicated facts is distilling them into charges a jury can readily understand. As one of my favorite federal judges would admonish prosecutors, ‘Keep it simple.’” A prosecutor suspected of overcharging might lose credibility with the judge or jury, generating sympathy for the defendant.
Certainly, a RICO conviction could come with a 20-year sentence. And there is something appealing about turning a colloquial observation about Trump (“He operates like a Mafia don”) into a criminal charge. But whatever penalty Trump will serve if convicted under the straightforward charges would be added to sentences for any convictions in his other cases. A RICO conviction seems unnecessary. After all, he is 77.
Let’s hope Willis shows restraint and follows Smith’s example. Rather than concoct the equivalent of a law school exercise (potential creating a hundred-plus-page indictment), she can bring to trial promptly with a compelling, manageable case focused on Trump. If she does that, she will have done extraordinary service in defense of the rule of law.
