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Donald Trump’s greatest threat is in Georgia; Indictment is likely – AG Garland may have to resign for legal, political and cosmetic reasons
Donald Trump’s Most Serious Threat
WASHINGTON DC (January 3, 2023) — A growing body of experts has concluded that former President Donald Trump’s most serious legal threat does not come from newly appointed Special Counsel Jack Smith.
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But by the Attorney of Fulton County, Georgia; in part because Attorney General Merrick Garland could dismiss one or more proposed federal indictments for legal and political reasons, as well as the troubling “optics,” says John Banzhaf, professor of public interest.
On Sunday, civil rights attorney David Henderson said on MSNBC, “I think in terms of prosecutors he has the most to fear in Georgia because Fani Willis isn’t going to back down, and a lot of the arguments we’re hearing about prosecuting the former president, they won’t.” can convince.”
Also, just last week, Willis wrote “target” letters to 10 other Republican voters, alerting them that they, too, could be indicted — a very clear sign that she’s moving forward. It’s hard to imagine how voters could be prosecuted in a plan to influence the election without also involving the person behind it and promoting the whole plan, argues Banzhaf.
Laurence Tribe, professor emeritus of constitutional law at Harvard University, wrote: “I wouldn’t be surprised if Georgia were the first jurisdiction to indict a former president for a crime. And I think the charges will stand.”
Previously, THE HILL reported that legal experts say that “an Atlanta-area prosecutor’s investigation into former President Trump’s efforts to overturn his 2020 Georgia election defeat poses the greatest legal threat to the former president,” notes Banzhaf, whose formal and detailed complaint that has sparked ongoing Georgia criminal investigations into Donald Trump, including the issuance of subpoenas by a special grand jury on many of those close to him.
“The steps her office has taken, including the appointment of a special grand jury and the subpoena of high-profile witnesses, are most likely not steps she would have taken had she not felt there was at least a significant possibility that she charges will be filed. ‘ said one expert.
He added that “the stakes in holding Trump accountable for an attack on our democratic system of government could not be higher and the evidence is extremely compelling.”
“The most serious prospect of prosecution” Trump faces is in Fulton County, Georgia, the New York Times reported in an op-ed by two experienced prosecutors (a Democrat and a Republican); a conclusion that reinforces an earlier 100-page analysis by seven legal experts who concluded that the former president faces “significant risk of potential state charges for multiple crimes”.
As the two former prosecutors concluded, “Willis’ work may present the most serious prospect of prosecution facing Mr. Trump and his enablers… She has a proven record of courage and conviction. a politically powerful group, the Atlanta teachers, as the prime prosecutor in the city’s teacher fraud scandal.
And she’s playing with a strong hand in this investigation. The corroborative record of Mr. Trump’s post-election efforts in Georgia is compelling.”
Georgian criminal law
As the New York Times further explained, “Moreover, Georgia’s criminal law is among the most favorable in the country to uncover Mr. Trump’s alleged wrongdoing. Trump apparently did it under Ms Willis jurisdiction: solicitation of voter fraud.
Under this statute [ GA Code § 21-2-604]a person commits criminal solicitation of voter fraud when he or she willfully “encourages, solicits, orders, intrusives, or otherwise attempts to induce” another person to engage in voter fraud.”
There are many other indications that Willis could be the first prosecutor to indict Trump, suggests Banzhaf, whose criminal complaint sparked her investigation and who also played a role in recruiting special prosecutors for former President Richard Nixon and eventually hiring the former Vice President Spiro Agnew played for justice.
Professor Banzhaf has long implied that the probe into Willis is more likely to indict Trump than any federal prosecutor would indict him for his role in allegedly instigating a Jan. 6 riot. Here are four reasons why. Some of the reasons also apply to possible federal prosecution for crimes related to the federal documents found at Mar-a-Lago.
FIRST, he says, the evidence in Georgia is clear and straightforward, in contrast to the words of Trump’s January speech, which many see as ambiguous – words of incitement similar to those used by other public figures – and where prosecutors may need to argue conclusions.
In the Georgia case, the language of Trump’s phone call with Republican Secretary of State Brad Raffensperger is very precise in his demands, the tone on the audio shows that Trump was not joking or speaking generally, others listening to the phone call no doubt took notes and some of passed them to Trump, and there is ample additional evidence of Trump’s criminal intent to influence the election results.
The fact that Trump, in a position to run the Justice Department, specifically mentioned possible criminal penalties if his wishes were not met and had similar calls made by others in his camp provides overwhelming evidence of his criminal intent, concludes Banzhaf, noting that many other criminal law experts, including several well acquainted with Georgian law, have publicly stated that they have come to the same conclusion.
SECOND, an indictment and trial in Georgia would raise no suspicion – and create very poor “optics” – of a new president seeking political retaliation and protection from competition in the 2024 presidential election by attempting to jail his opposition, or at least to harm him with federal indictments and the trial itself.
Incoming presidents imprisoning their predecessors is what we and others around the world associate with tin-horn dictators in third-world countries with corrupt governments, not the US, argues Banzhaf.
It’s worse here, because polls suggest that already-declared candidate Trump would be the strongest opponent of Joe Biden, or any other Democrat, in the 2024 presidential race. Indicting him for federal crimes, let alone putting him behind bars during this election, would be considered by many politically motivated charges.
Also, it seems unfair to many to use the entire resources of the United States government against one person, even a rich and powerful person like Trump.
An indictment by a district attorney’s office would avoid all of these problems and perceptions, Banzhaf notes, potentially giving it an even greater chance of success and avoiding a jury annulment at a trial.
THIRD, there is no problem with free speech, as there would be a prosecution over Trump’s speech at the January 6 rally.
According to the Brandenburg Supreme Court ruling, the government may only criminally punish someone for making a political speech if it is “directed at inciting or producing imminent lawless action and is probably to incite or provoke such acts” – in other words, it must create a clear and present danger. [emphasis added]
But given the length of time that elapsed between Trump’s speech and the lawless actions of his supporters — enough time, for example, for authorities to take preemptive steps if they seemed warranted at the time — it’s not clear that the lawless actions “were imminent.” in the same sense as a hypothetical crowd being told to “hang him now”.
More importantly, can it be said – let alone proven beyond a reasonable doubt – that the remarks were “likely” to provoke illegal activity?
For example, at the time of the speeches, why didn’t various officials and law enforcement officials issue clear warnings of possible lawlessness when his words were so clearly “likely to incite or provoke violence”?
If this was not the case, which appears to be the case, this suggests that even experts may not have believed that lawless action was “probable” – not just possible or conceivable. In this regard, hindsight can be questionable, suspect and not very convincing, argues Banzhaf.
FINALLY, Willis plans to use Georgia’s RICO — its Thug-Influenced and Corrupt Organizations Act — in any prosecution of Trump.
Banzhaf, who has been familiar with the federal RICO statute since writing the memo that led to the federal government’s successful RICO indictment of the big tobacco companies, points out that Georgia’s RICO statute is even more powerful and far-reaching than that federal.
Among other things, it defines racketeering more broadly than federal law, takes less to prove a pattern of racketeering activity, and doesn’t always require the existence of an “enterprise” – particularly an illegal or criminal enterprise – to constitute racketeering. In fact, Willis successfully used RICO to prosecute a case of teacher fraud.
Banzhaf also notes that RICO requires at least two independent illegal extortion activities — “predicate acts” — to prove a corruption pattern by Trump and his alleged co-conspirators, making false statements that Trump and some of his allies have been accused of making Georgia’s RICO law more than suffices.
Extortion, which is a crime in Georgia, is punishable by up to 20 years in prison, a hefty fine, and surrender of ill-gotten gains. Most Georgia criminals convicted of extortion offenses serve time in prison.
Because many people very close and associated with Trump have been subpoenaed, anyone who thinks Trump needs to be prosecuted should keep a very close eye on Georgia prosecutor Fani Willis, the law professor advises.