Lawfare is bad; lawfare without law is worse.
Lawfare is bad; lawfare without law is worse. Today, a small blow was struck against lawless criminal charges, and in favor of the idea that people can be prosecuted only for violating laws that have been written down somewhere.
Fulton County judge Scott McAfee has dismissed six counts of the Georgia indictment against Donald Trump and his co-defendants. Trump was named in three of those six (counts 5, 28, and 38), so this reduces the number of pending charges against him from 91 to 88. Other defendants named in these counts include Rudy Giuliani, John Eastman, and Mark Meadows; the dismissal of count 28 leaves Meadows facing only the single overarching RICO conspiracy count. The order does not permanently dismiss the six counts, but Fani Willis and her team have six months to resubmit them to the grand jury, and electing to do so could further delay a trial until well after the presidential election, which Willis very much does not want. (As the court noted, federal law allows indictments to be clarified without returning to the grand jury, but Georgia law does not.) The court did, however, decline to dismiss alleged overt acts from the RICO conspiracy count even though they suffered from the same problems.
While this decision is based on Georgia law, it reflects Judge McAfee taking an opposite view from the one taken by Justice Juan Merchan in sustaining Alvin Bragg’s indictment in Manhattan. To understand what happened here, it is useful to recall that a lot of the charges against Trump are hybrid crimes, and particularly vague ones, at that. Let me explain why.
In a typical criminal charge, the government says, “This is a crime, and you did it,” and a trial asks a jury whether you did, in fact, do it. Or, the government charges you with an attempted crime: “This is a crime and you tried to do it,” and a jury has to decide if you tried to do it, and got at least far enough to count as an attempt. But then, there are three general types of hybrid crimes: conspiracy, RICO, and compound or incorporated crimes.
In a conspiracy case, the government has to prove that you agreed with other people to commit a crime, even if no crime was committed or attempted, so long as overt acts prove the existence of a conspiracy and your agreement to it. That’s a hybrid because you don’t have to have committed the crime itself. But a conspiracy typically still requires the government to say what the crime is that the conspirators agreed to commit. A major exception is the “conspiracy to defraud the United States” statute, 18 U.S.C. 371 — so, of course, Jack Smith has charged Trump in the D.C. case with that offense, pursuing a vague theory of how Trump defrauded the federal government. That theory happens to be barred by two separate unanimous Supreme Court precedents, but forget it, Smith is rolling: He’s gotten around having to charge a specific thing that is a crime.
In a RICO case, the government has to prove more: that you agreed to be part of a criminal enterprise, and that the criminal enterprise was conducted by committing particular crimes. But there is a way around that, too: Willis has alleged a RICO conspiracy, in which she argues that she doesn’t have to allege that the enterprise actually committed any particular crimes or agreed to commit any particular crimes. They just have to have agreed to an enterprise for a purpose that isn’t a crime, and agreed that the enterprise would use criminal means. This allows her to string together a bunch of different acts, some of them legal, some of them crimes, some of them conspiracies to commit crimes. Got it?
In a compound or incorporated crime, the government has to prove something that includes another crime. For example, Bragg’s false statement charges allege that Trump tried to cover up other crimes. Willis alleges that Trump and his co-defendants tried to solicit various Georgia officials into committing other crimes. But here’s the thing: Both Bragg and Willis have argued that they don’t have to say what the other crime is. Bragg argued that the legal violations Trump was trying to cover up included the entire federal-election code. And Justice Merchan bought it, concluding that Trump could be indicted on the theory that he was trying to conceal a violation of federal election laws or state election laws or state tax laws, entirely without regard to whether Bragg could show that the underlying conduct would actually violate any of those laws. So much for a nation of laws.
This is a particularly menacing way in which to bring a criminal charge, because if there are multiple different theories of how the defendant’s conduct was illegal, there is a grave risk that the jury will convict even if it is not unanimous on any one theory. So much for the protection of requiring prosecutors to convince a jury to agree unanimously beyond a reasonable doubt.
Judge McAfee didn’t buy that. “The crime of Violation of Oath by Public Officer, O.C.G.A. § 16-10-1, prohibits any public officer from willfully and intentionally violating the terms of his or her oath as prescribed by law,” he wrote. “The term of the oath alleged to have been violated must be ‘expressly prescribed,’ meaning it is explicitly contained in the applicable statutory provisions.” Willis charged Trump and others with soliciting Georgia legislators and Georgia secretary of state Brad Raffensperger to violate their oaths of office. For example:
Count Five alleges that Defendant Trump solicited the Speaker of the Georgia House of Representatives to violate his oath of office on December 7, 2020, by requesting or importuning him to call a special session to unlawfully appoint presidential electors…Count 28 alleges that Defendants Trump and Meadows solicited the Georgia Secretary of State to violate his oath of office on January 2, 2021, by requesting or importuning him to unlawfully influence the certified election returns.
These were improper acts. But how were they crimes? Willis never said:
The State first responds that the Defendants are only charged with solicitation, not violation of oath of office, and argues that the “great weight of authority” has never required charging language to reach beyond the elements of solicitation itself. But Sanders [v. State (Ga. 2022)] tells us that the elements of the underlying, predicate felony that is alleged to have been solicited cannot be so easily ignored. In Sanders, the Georgia Supreme Court found a special demurrer should have been granted when an indictment failed to sufficiently allege the underlying felony solicited by the defendant…Without this information, the Defendant could not prepare a defense intelligently as the crime could be committed “in a number of possible ways.”…In other words, a naked charge of solicitation cannot survive unless accompanied by additional elements establishing the solicited felony. [Emphasis added.]
Judge McAfee found that Willis offered the defense no way in which to prepare an argument that they didn’t solicit anything that was against the law:
While the averments do contain a reference to the terms of the violated oaths, this Court finds that the incorporation of the United States and Georgia Constitutions is so generic as to compel this Court to grant the special demurrers. On its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime’s study. Academics and litigators devote their entire careers to the specialization of a single amendment. To further complicate the matter, the Georgia Constitution is not a mere shadow of its federal counterpart, and although some provisions feature similar language, the Georgia Constitution has been interpreted to contain dramatically different meanings. . . .
The Court’s concern is less that the State has failed to allege sufficient conduct of the Defendants — in fact it has alleged an abundance. However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal. As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited. . . . They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct ways. [Emphasis added; citations and quotations omitted.]
This really is the problem with the virtually law-free zone in which most of the criminal charges against Trump (other than the ones in the Mar-a-Lago boxes case) have been brought. Trump won’t be on trial to dispute whether he did some particular crime or not, because most of the charges don’t identify a particular thing against the law that Trump did, or tried to do. They allow prosecutors to claim conspiracies to do things without proving that those things were actually illegal. The Trump prosecutions shine a harsh light on how far our criminal law has strayed in expanding the prosecutor’s toolbox at the expense of giving Americans clear notice of what laws they are charged with violating — and the particular power that gives prosecutors to pursue their political enemies, ideally by trying them in jurisdictions where the target is unpopular.
Even so, Willis got away with it in the RICO conspiracy count; she will be able to argue to the jury that Trump is guilty even if he did none of the things he is charged with, and even if none of the things his co-conspirators are charged with were crimes:
These pleading deficiencies do not apply to the corresponding overt acts listed in Count 1. . . . Overt acts alleged as part of a conspiracy are not held to the same pleading standards as statutorily based offenses. Instead, all that is required is a reference to the overt act alleged by the State. . . . And even then, a defendant can be found guilty of conspiracy even after acquittal of any overt acts alleged to have been committed by that defendant, as long as at least one overt act is proven to have been committed by a co-conspirator. . . . Defendants have not provided any authority requiring that the particulars of an overt act be alleged or subjecting overt acts to the standards of general or special demurrers. [Emphasis added; citations and quotations omitted.]
So, the exact same vague charges will stay in the RICO conspiracy count. Which means that this victory is a modest one. But it’s a start.