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August 15, 2023
Noting Georgia's limits on pardon powers in wake of latest state indictment for former Prez Trump and associates
Thanks to indictment fatigue, I have not yet had much interest in trying to figure out the full sentencing exposure of former Prez Donald Trump or his many co-defendants (AP details here) in the wake of last night's nearly 100-page indictment from Fulton County. But a quick scan of press coverage has led me to already see lots of talk about Georgia's distinctive pardon laws:
From Insider, "Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says"
From MSNBC, "Why Trump can’t kill Georgia charges like federal ones"
From Newser, "A Georgia Worry for Trump: Pardon-Proof Charges"
These pieces and others are understandably focused on the apparent inability under Georgia law for former Prez Trump to secure a pardon. But I think it also notable and important that Georgia law also limits the pardon possibilities for Prez Trump's Georgia co-defendants. As in most traditional cases, all the defendants in this new Georgia case will have to deal with the reality that only prosecutors have clear and direct authority to dole out criminal justices breaks.
August 15, 2023 at 09:38 AM | Permalink
Comments
This indictment is so lawless . . . .
If I were any of the defendants, I'd just not show up.
Posted by: federalist | Aug 15, 2023 10:08:40 AM
It appears that the Fulton County Attorney will want to cut plea deals with some of the 18 other defendants named in last night's indictment, presumably without them having to serve the 5-year mandatory minimum sentence for racketeering under Georgia law. This leads me to wonder what other charges the District Attorney might offer cooperating witnesses in plea bargains, to get their testimony against Donald Trump. Presumably these would be charges that could lead to a sentence of probation of much less time than the 5-year minimum for racketeering. The other issue I am concerned about is what kind of deal that the District Attorney might offer Mark Meadows, who is named as an unindicted co-conspirator in the Federal D.C. indictment against Trump. Many observers believe that Meadows has cut a deal with Special Counsel Jack Smith to provide critical damaging information and testimony against Trump, in exchange for not being indicted in the Federal case. Can Jack Smith get the Fulton County Attorney to cut Meadows a similar deal, or will she nevertheless wat a guilty plea to a felony, even if the sentence is probated? And do any of the attorney-defendants in the Georgia case stand much of a chance of keeping their law licenses after the legal dust settles? Even if the Fulton County Attorney offers the attorney-defendants plea deals with probation (no prison time), nevertheless, the loss of one's law license is alone a serious punishment. One must wonder how such intellectually accomplished attorneys (including Harvard Law School grads who have clerked for Justices on the U. S. Supreme Court and served as Federal prosecutors and senior DOJ Officials) could have gotten themselves into so much legal trouble. Sometimes in the practice of law, attorneys can get blinded to their legal exposure by identifying too much with their charismatic clients and their client's causes, that they cross legal lines and get indicted. Some attorneys don't grasp the scope of charges of conspiracy and aiding and abetting one's legal client's crimes. In some representations, there comes a point where the attorney should withdraw from representation to protect himself from possible indictment, and to avoid furthering his client's criminal misconduct. Trump has gotten many of his former attorneys into a great deal of trouble, in part because he doesn't follow their advice and he lies to and deceives his defense counsel. Trump is definitely a dangerous client to try to represent.
Posted by: Jim Gormley | Aug 15, 2023 10:19:08 AM
federalist, the hole Mr. Trump is in just keeps getting deeper. The Georgia indictment confirms that he has been and remains a pernicious and malignant force in American politics, right up there with Benedict Arnold, Aaron Burr, and Jefferson Davis. You should reconsider your increasingly futile and pathetic efforts to defend him.
Posted by: anon12 | Aug 15, 2023 10:24:55 AM
Jim Gormley, your remarks about Trump's attorneys are perceptive and insightful. As far as I'm concerned (and I've been practicing law for more than 30 years), each of them is a disgrace to the legal profession and should be disbarred.
Posted by: anon12 | Aug 15, 2023 10:27:23 AM
In the past, there has been talk that Florida Governor Ron Desantis would refuse to permit Florida to extradite Trump to another state, but that doesn't seem to be a realistic idea now. Being a fugitive from Georgia, with a warrant out for his arrest, would probably violate the terms of Trump's pre-trial release in the Federal cases (including in Florida) and in New York. Trump's pre-trial release could be revoked if he fails to appear for arraignment in Atlanta in August 25th, and then the various criminal jurisdictions could fight over which of them gets to actually incarcerate Trump as a pre-trial detainee. I am betting on the Federal Judge in D.C. and the U. S. Marshals; but the D.C. jail is a notoriously horrible place.
Posted by: Jim Gormley | Aug 15, 2023 10:28:48 AM
I particularly feel for Trump's former attorney, Evan Corcoran, to whom a Federal Judge found that the crime-fraud exception to the attorney-client privilege applied. He had to turn over to Federal prosecutors his hand-written notes of client meetings and then he had to testify before the Grand Jury that indicted Trump in Florida. Corcoran has an Ivy League education and previously served for more than 10 years as a Federal prosecutor himself. He is also the son of a former Congressman from Illinois. Corcoran had a pristine reputation, but got into trouble because his client lied to him and used him, to try to keep classified documents that he said he didn't possess. IT IS EXTRAORDINARILY RARE FOR A JUDGE TO FIND THAT THE CRIME-FRAUD EXCEPTION to the attorney-client privilege applies to an attorney's representation of a client, yet it is likely to come up concerning every attorney named in the Fulton Superior Court indictment of Trump and about 6 attorneys, including the former U. S. Attorney for the Southern District of New York (and Mayor of New York City). The crime-fraud exception will be a huge issue in the Georgia case.
Posted by: Jim Gormley | Aug 15, 2023 10:51:00 AM
I have to admire the strategic beauty of the Georgia indictment.
Typically, in a RICO case, the first line of defense is that I am not a member of that organization. E.g., That Gambino crime family really seems like a horrible group of people, but I only know them from showing up at my bar and never had anything to do with their business. But with the corrupt organization here being the presidential campaign, that defense is pretty much out the window.
The second line of defense is that while you are a member of the organization, you had no role in the "corrupt" part of the organization. E.g., Yes, I work at Gambino's pizzeria but I am just a cook. I had no idea that the managers were creating fake invoices to cover up money laundering. But, I have trouble seeing President Trump presenting a defense that he had no control over his campaign.
That leaves the hardest possible line of defense in a RICO case, challenging each and every one of the overt acts and predicate offenses. The prosecution does not have to prove every overt act and predicate offense. They just need to prove some of them. That reverses the usual situation in a criminal trial when the prosecution is having to play whack-a-mole with potential defenses. Here, the defense will have to prepare for each of the alleged overt acts and the prosecution can decide to just pursue whatever 20 or 30 are strongest. By alleging over 150 overt acts, the Fulton County DA has made life really hard for defense counsel.
Additionally, these charges reflect the incompetence of the lawyers in the Trump campaign. While disputes about presidential electors are rare, when they have arisen and it was necessary for the "contingent" electors to meet (to preserve the claims), the attorneys handling those legal cases were very careful to draft the certificate of votes to make clear that the electors were only asserting that they were a slate of elector candidates who would become the electors if the cases succeeded. That language created an easy defense to forgery and impersonation charges. Here, despite having lost every legal challenge to date, the certificates drafted for the electors in Georgia boldly (and falsely asserted) that they were the certified electors. While a judge will have to decide the legal validity of the claim that such conduct is enough to qualify as forgery and impersonation, these charges could have been easily avoided.
Posted by: tmm | Aug 15, 2023 11:00:42 AM
"federalist, the hole Mr. Trump is in just keeps getting deeper. The Georgia indictment confirms that he has been and remains a pernicious and malignant force in American politics, right up there with Benedict Arnold, Aaron Burr, and Jefferson Davis. You should reconsider your increasingly futile and pathetic efforts to defend him."
Perhaps, but being a bad guy ain't a crime. This is a BS case, and everyone knows it. You get to ask elected officials to do things.
tmm, it's called fighting fire with fire.
Posted by: federalist | Aug 15, 2023 11:22:11 AM
federalist, you say "This is a BS case, and everyone knows it." A very Trumpian response." Just who exactly is "everyone"?
Posted by: anon | Aug 15, 2023 1:31:41 PM
anon, my bad, anyone with a brain and intellectual honesty
Posted by: federalist | Aug 15, 2023 1:40:39 PM
"A BS case" because the Republican is the defendant.
"You get to ask elected officials to do things." You don't get to ask (much less coerce) them to violate their sworn oaths. "Look, everyone knows it would be better for the country if a Republican stayed in power, so do whatever you have to to make that happen." Lovely country we live in.
Posted by: Really? | Aug 15, 2023 5:41:50 PM
Anon12
“…pernicious and malignant force…”
True, but not illegal.
I’d like someone to point out a single count in the indictment that is an illegal act.
Posted by: TarlsQtr | Aug 15, 2023 8:21:40 PM
Jim Gormley --
"It appears that the Fulton County Attorney will want to cut plea deals with some of the 18 other defendants named in last night's indictment, presumably without them having to serve the 5-year mandatory minimum sentence for racketeering under Georgia law. This leads me to wonder what other charges the District Attorney might offer cooperating witnesses in plea bargains, to get their testimony against Donald Trump."
Isn't that exactly the practice defense lawyers have routinely and acidly condemned as the prosecution's "buying" or "coercing" testimony? But all of a sudden the tune changes when it's a defendant they detest.
Goodness gracious, it's enough to give hypocrisy a bad name.
Posted by: Bill Otis | Aug 15, 2023 11:29:51 PM
anon --
You write this (emphasis added): "federalist, you say 'This is a BS case, and everyone knows it.' A very Trumpian response." JUST WHO EXACTLY IS 'EVERYONE'?"
The inquiry about "who exactly is everyone" is made by someone who refuses to give his own name.
You can't make this up.
Posted by: Bill Otis | Aug 15, 2023 11:35:02 PM
Tarls, glad that you agree that Trump is "a pernicious and malignant force" in American politics.
Mr. Otis, do you agree with me and Tarls on this point at least?
Posted by: anon12 | Aug 16, 2023 12:47:25 PM
anon12 --
At least Trump puts his name to what he writes. You might try it too. Doesn't hurt a bit.
Until then, my views about Trump's fitness for office are spelled out in numerous posts on my Substack, "Ringside at the Reckoning."
Posted by: Bill Otis | Aug 16, 2023 1:35:11 PM
Tarls, you agree that Trump is a pernicious and malignant force, but you can't see a criminal act in the indictment. What about Count 5?
"COUNT 5 of41
And the Grand Jurors aforesaid… do charge and accuse DONALD JOHN TRUMP with the offense of SOLICITATION OF VIOLATION OF OATH BYPUBLIC OFFICER, O.C.G.A. §§ 16-4-7 & 16-10-1, for the said accused, in the County o Fulton and State of Georgia, on or about the 7th day 0f December2020, unlawfully solicited, requested, and importuned Speaker of the Georgia House of Representatives David Ralston, a public officer, to engage in conduct constituting the felony offense of Violation of Oath by Public Officer, O.C.G.A. § 16-10-1, by calling for a special session of the Georgia General Assembly for the purpose of unlawfully appointing presidential electors from the State of Georgia, in willful and intentional Violation of the terms of the oath of said person as prescribed by law, with intent that said person engage in said conduct, contrary to the laws of said State, the good order, peace and dignity thereof"
Posted by: Anon12 | Aug 17, 2023 12:04:05 AM
Tarls, to add to what Anon12 points out, what about Count 11. It charges Trump and others with conspiring to commit forgery. That's certainly a crime. Whether the government can prove it to a jury BYD is a different question, but the charge is no doubt a crime.
COUNT 11 0f 41
"The Grand Jurors … do charge and accuse DONALD JOHN TRUMP, RUDOLPHWILLIAM LOUIS GIULIANI, JOHN CHARLES EASTMAN, KENNETH JOHN CHESEBRO, RAY STALLINGS SMITH III, ROBERTDAVID CHEELEY, and MICHAEL A. ROMAN with the offense of CONSPIRACY TO COMMIT FORGERY IN THE FIRST DEGREE, O.C.G.A. §§ 16-4-8 & 16-91(b), for the said accused, individually and as persons concerned in the commission of a crime, and together with indicted and unindicted co-conspirators, in the County of Fulton and State of Georgia…. unlawfully conspired, with the intent to defraud, to knowingly make a document entitled "CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA," a writing other than a check, in such manner that the writing as made purports to have been made by authority of the duly elected and qualified presidential electors from the State of Georgia, who did not give such authority, and to utter and deliver said document o the Archivist of the United States; And the Defendants named in Count 10, acting as co-conspirators, as described above and incorporated by reference… made said document in Fulton County, Georgia, and uttered and delivered said document to the Archivist of the United States in Fulton County, Georgia, which were overt acts to effect the object of the conspiracy, contrary to the laws of said State, the good order, peace and dignity thereof."
Posted by: Emily | Aug 17, 2023 12:19:29 AM
Tarls, Count 17 also charges Trump and others with “CONSPIRACY TO COMMIT FORGERY IN THE FIRST DEGREE, O.C.G.A. §§ 16-4-8 & 16-9-1(b)” Sounds like a crime to me.
Posted by: Anon12 | Aug 17, 2023 12:24:43 AM
Wow, Anon 12 and Emily are actually making me read the Georgia indictment!! Tarls, I understand your concerns, but they do point out several crimes that Trump is charged with. And I myself just noticed COUNT 28, which I'm sure is the famous "Just find me 11,0000..." one we've heard a million times.
Count 28 charges Trump and Meadows with the crime of soliciting a violation of oath in violation of Oregon Code §§ 16-4-7 & 16-10-1, when they “unlawfully solicited, requested, and importuned Georgia Secretary of State Brad Raffensperger, a public officer, to engage in conduct constituting the felony offense of Violation of Oath by Public Officer… by unlawfully altering, unlawfully adjusting, and otherwise unlawfully influencing the certified returns for presidential electors for the November 3, 2020, presidential election in Georgia…."
Of course Trump has defenses to these charges, but they are indeed charges. In the final analysis, we'll see what a jury of 12 has to say.
Posted by: Dave from Texas | Aug 17, 2023 12:34:39 AM
Dave, you get to ask public officials to do things. Can't bribe them, but you get to ask.
Posted by: federalist | Aug 17, 2023 9:02:38 AM
anon12, are you serious? Forgery just doesn't cover putting together a slate of electors to be certified when everyone knows the relevant facts.
Let's say Trump had made this argument: "Guys, in states where the election rules were changed not by the Legislature but by collusive suits, those results are invalid, and thus we need to toss the 'rat electors and substitute mine." Is it forgery to submit a slate to the SOS? Come on guys.
Posted by: federalist | Aug 18, 2023 12:42:24 PM
https://nypost.com/2023/08/18/white-house-wont-say-if-biden-familys-china-biz-is-security-issue/
Doug, for your edification regarding the relative morality of Trump v. the 'rats.
Posted by: federalist | Aug 18, 2023 4:35:27 PM
federalist, I'm not saying there are no defenses; of course there are. The question was whether the indictment alleged crimes; it certainly does.
Posted by: anon12 | Aug 18, 2023 8:04:16 PM
You get to ask people to do things that they legally can do. If you ask them to commit a crime, then your conduct is not protected by the First Amendment. Supreme Court just reaffirmed that this term.
I am sure that the former president's lawyers will claim that he was simply asking the Georgia Secretary of State to double check the math. But the ask was done after the Secretary of State's role in certifying the election was complete and it certainly can be interpreted as asking for the Secretary of State to falsify the results.
Posted by: tmm | Aug 19, 2023 6:56:52 PM
tmm, first of all, "can be interpreted" = reasonable doubt as a matter of law. Second of all, it would be presumed that the "ask" would be something that the SoS could do. So who is going to lock up Al Gore when he made government bureaucrats hand out citizenship to ineligible foreigners just so Dems could get more votes?
Posted by: federalist | Aug 21, 2023 12:02:11 PM
