To Understand The Latest Crazy Trump Indictment, Check Out The 6 Types Of Charges
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To get a handle on the indictment and stay current with the various developments, it is helpful to put the charges into one of six buckets.
Late Monday, Fulton County District Attorney Fani Willis charged former President Donald Trump and 18 other defendants in a 98-page indictment that included a total of 41 different counts.
The defendants are already fighting back, with Trump’s former chief of staff, Mark Meadows, seeking to remove the case to federal court based on a statute that protects federal officials from state court prosecution for official conduct. More counteroffensives will likely follow, with other former federal officials, including Trump, presumably also seeking removal to federal court, while the remaining defendants will probably expeditiously move to dismiss the indictment on a variety of grounds.
To get a handle on the indictment and to stay current with the various developments, it is helpful to put the charges into one of six buckets, starting with the biggest one: the alleged RICO conspiracy.
Bucket 1: RICO
The Racketeer Influenced and Corrupt Organizations Act (RICO) count runs some 70 pages and says all 19 defendants, “while associated with an enterprise, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through a pattern of racketeering activity.” The indictment next defines the “enterprise” as “a group of individuals associated in fact,” who “had connections and relationships with one another” and “functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise,” which Willis maintains was “to unlawfully change the outcome of the election in favor of Trump.”
There are several problems with the RICO count, most fundamentally, as Andrew McCarthy explained in an enlightening article, RICO requires an “enterprise,” which, while not necessarily a formal entity, needs to be an identifiable group. The RICO crime, then, is “being a member of the enterprise that commits crimes, not the commission of any particular crime.”
But there must be some sort of “enterprise,” and here Willis conflates the objective — keeping Trump in power — with “the enterprise.” “It was that objective, and not the sustaining of any group, that brought them together; and once that objective was attained or conclusively defeated, the group — to the dubious extent it really was an identifiable group — would (and did) melt away,” McCarthy wrote. It’s a “good sign that you’re not dealing with a RICO enterprise,” the former federal prosecutor explained.
Without an “enterprise,” there can be no RICO crime, and the facts alleged in the indictment are such that the defendants will likely soon seek dismissal of that count. Now, Georgia law differs from federal law on RICO, and there is no saying how the state court will interpret its own RICO statute, but from a legal perspective, the claim is exceedingly weak.
The second fundamental problem with the RICO count is factual: Willis portrays the defendants as trying to unlawfully change the election in Trump’s favor, but the many actions Trump and others took involved legal proceedings and efforts to convince the legislative bodies to use their authority to address what the defendants saw as a fatally flawed election. A court is unlikely to toss the complaint on this ground, however, with factual disputes ones only a jury can resolve.
However, if the court holds, as it appears it should, that the RICO count fails as a matter of law because there was no “enterprise,” then that factual dispute is irrelevant. Likewise, the 160-some “acts” Willis included in the indictment — everything from Trump declaring victory on Nov. 4 to tweeting that followers should watch a television newscast — allegedly in furtherance of the “RICO” conspiracy become irrelevant.