The broad racketeering indictment returned this week by an Atlanta grand jury presents a wide range of challenges. One big challenge is political — finding jurors without unmovable opinions about former President Donald Trump and others associated with him.
Additionally, with so many defendants, defense lawyers and prosecutors will attempt to keep the conflicting stories and names straight for the jurors over weeks and months. There will be numerous legal details and logistics to work out or argue — including a courtroom large enough to fit everyone.
In the first example of the protracted litigation ahead, attorneys for former Trump chief of staff Mark Meadows filed a rapid motion Tuesday to transfer the case from state to federal court.
They maintained that his actions were in service to his role at the White House, foreshadowing an argument that the Constitution makes him immune from prosecution.
Fulton County District Attorney Fani Willis has brought ten other state racketeering cases since taking office in January 2021. While serving as an assistant D.A., she used the racketeering law to successfully prosecute public school educators in Atlanta in a test-cheating scandal. In contrast, in one of Willis’ current cases, involving rapper Young Thug, jury selection started in January and continues over seven months later.
Willis’ office now faces the massive challenge of pursuing dozens of felony counts against the former president, who is also fighting three other criminal cases.
“Just because they have experience with it doesn’t mean that it’s easy,” said a former district attorney in neighboring DeKalb County, now a defense attorney, Robert James. “It’s going to be slow; it’s going to be methodical, laborious.”
After investigating for over two years, Willis used Georgia’s racketeering law to charge former President Trump and 18 of his allies, alleging a wide-reaching conspiracy to keep him in power after his 2020 election loss to now-President Joe Biden. Aides, lawyers, and GOP activists are accused alongside Trump.
Tuesday, several defendants accused Willis of playing politics with the indictment.
“The Democrats and the Fulton County D.A. are criminalizing the practice of law,” said lawyer Jenna Ellis, one of the defendants, on Facebook Tuesday. “I am resolved to trust the Lord, and I will simply continue to honor, praise, and serve Him. I deeply appreciate all of my friends who have reached out offering encouragement and support.”
Trump said he would release a report with “irrefutable” election fraud next Monday
Former President Donald Trump said he would release a report Monday demonstrating “irrefutable” election fraud in Georgia.
In the indictment, Willis used Georgia’s Racketeer Influenced and Corrupt Organizations Act to craft a complex narrative implicating numerous people accused of committing separate crimes to pursue a common goal. Some actions alleged are not crimes in their own right but are portrayed as helping to further an overall illegal scheme.
The Atlanta grand jury issued arrest warrants, and Willis has given the defendants until noon on August 25 to surrender. Each of the 19 defendants will also have arraignments scheduled in the upcoming weeks.
Trying significant racketeering cases like the one against Trump tends to be more challenging for the defense than the prosecution since defense lawyers have to disentangle individual clients from other defendants who may be considered more guilty.
“The government is presenting a big picture,” said New York criminal defense lawyer Barry Zone, who has been involved in several cases with large numbers of defendants. “So, even if one person is less culpable than another, they’ll be able to tell the story because they’re telling the story as to multiple people.”
Zone said it’s easy for jurors to see defendants at a table as one group rather than individuals, so “the optics when you’re trying multiple defendants is that they’re all working together.”
Although Fulton County prosecutors have tried to paint the 19 defendants as jointly engaged in a criminal conspiracy, it is clear that the individuals charged don’t see themselves as a unified team.
When Rudy Giuliani, the defendant in the Georgia case, met with Jack Smith, Justice Department special counsel’s team, he spoke in detail about Sidney Powell, a fellow defendant, according to someone familiar with the matter.
Although Willis said she was pushing for speedy proceedings, things will likely move slowly once the case goes to trial, with each defendant’s attorneys having an opportunity to cross-examine every witness.
Setting aside legal complexities, the physical complications of trying so many people simultaneously are daunting, said Danny Porter, the former district attorney in Gwinnett County northeast of Atlanta.
They may try to limit the individuals present in the courtroom to the defendants, security officers and attorneys for both sides. However, that could lead to constitutional questions, said Porter.
“Georgia is a very strong state on the public’s right to access to a courtroom,” he said.
Another option might be to find a “nontraditional” space, like a convention center or auditorium, said Porter. He noted that a north Georgia district used a nearby civic center amid the Covid-19 pandemic to accommodate social distancing requirements.
