The fourth indictment of former President Donald Trump | Special Report ... Trump and Allies in Georgia Face RICO Charges ... Explainer: Trump charged under law used to prosecute mafia bosses.
The fourth indictment of former President Donald Trump | Special Report
A grand jury in Fulton County, Georgia, has indicted former President Donald Trump and more than a dozen of his associates on charges of election fraud, racketeering and other counts related to alleged efforts to overturn the 2020 election. CBS News chief election and campaign correspondent Robert Costa anchors a special report.
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A grand jury in Fulton County, Georgia, indicted former President Donald Trump and more than a dozen of his associates, charging them with election fraud, racketeering and other counts related to alleged efforts to overturn the 2020 election on Monday. The filing lists 41 total counts, including 13 against Trump, and notes there are 30 unindicted co-conspirators. CBS News congressional correspondent Nikole Killion has more from Atlanta on the charges Trump and his associates are facing.
#news #politics #trump
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A grand jury in Fulton County, Georgia, has indicted former President Donald Trump and more than a dozen of his associates for election fraud, racketeering and other charges related to alleged efforts to overturn the 2020 election.
Trump, the first former president in U.S. history to face criminal charges, has now been charged in four separate cases involving allegations that bookend his presidency.
Fulton County District Attorney Fani Willis said at a news conference Monday night that arrest warrants have been issued for all the defendants in the case, and that they have until noon on Aug. 25 to turn themselves in.
"The state's role in this process is essential to the functioning of our democracy," Willis said.
"Georgia, like every state, has laws that allow those who believe that results of the election are wrong, whether because of intentional wrongdoing, or unintentional error to challenge those results in state courts," she said. But rather than abiding by Georgia's legal process for election challenges, she said, the defendants "engaged in a criminal racketeering enterprise to over Georgia's presidential election result subsequent to the indictment."
Willis said the racketeering charges have "time that you have to serve, so it's not a probated sentence," meaning that if convicted, the defendants will be sentenced to prison time.
Willis also noted that all defendants are presumed innocent until proven otherwise.
The indictment names Trump as the top defendant and 18 others, including Rudy Giuliani, his former lawyer; John Eastman, a conservative lawyer; and Mark Meadows, former White House chief of staff. Other co-defendants include Jeffrey Clark, a former Justice Department official; and Sidney Powell and Jenna Ellis, conservative lawyers who pushed baseless claims of voter fraud.
The filing lists 41 total counts, including 13 against Trump, and notes there are 30 unindicted co-conspirators. In all, 19 defendants are charged with "the offense of violation of the Georgia RICO Act," among other charges.
Georgia's Racketeer Influenced and Corrupt Organizations Act, better known as RICO, allows this group of people to be charged for criminal acts that are alleged to have taken place both in Georgia or outside the state in furtherance of the conspiracy to overturn the outcome of the presidential election in Georgia.
The indictment describes the group as "a criminal organization whose members and associates engaged in various related criminal activities including, but not limited to, false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, conspiracy to defraud the state, acts involving theft, and perjury."
The 98-page indictment lays out a scheme that began with Trump's loss in the 2020 presidential election, including in the state of Georgia, and says that those charged "refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump."
"That conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the state of Georgia, and in other states," the filing states.
The indictment describes several schemes allegedly used by Trump and his co-defendants to attempt to reverse his electoral loss, including making false statements to state legislatures and top state officials; creating fake Electoral College documents and recruiting supporters to cast false votes at the Georgia Capitol; harassing Fulton County election worker Ruby Freeman; and "corruptly" soliciting senior Justice Department officials and then-Vice President Mike Pence.
It also accuses members of the "enterprise" of stealing data, including ballot images, voting equipment software and personal voter information, from Coffee County, Georgia, and making false statements to government investigators.
Trump has repeatedly denied any wrongdoing.
In a statement Monday night, attorneys for Trump criticized the investigation, saying "this one-sided grand jury presentation relied on witnesses who harbor their own personal and political interests."
"We look forward to a detailed review of this indictment which is undoubtedly just as flawed and unconstitutional as this entire process has been," said the attorneys, Drew Findling, Jennifer Little and Marissa Goldberg.
The charges against Trump
The indictment charges Trump with the following felony counts:
- Violating the Georgia RICO Act
- Three counts of solicitation of violation of oath by public officer
- Conspiracy to commit impersonating a public officer
- Conspiracy to commit forgery in the first degree
- Conspiracy to commit false statements and writings
- Two counts of conspiracy to commit filing false documents
- Conspiracy to commit forgery in the first degree
- Two counts of false statements and writings; and filing false documents.
The grand jury returned the indictments around 9 p.m. ET and it took around two hours to process before the details became public.
The investigation, led by Fulton County District Attorney Fani Willis, was prompted in part by a Jan. 2, 2021, phone call in which Trump told Georgia Secretary of State Brad Raffensperger: "I just want to find 11,780 votes, which is one more than we have. Because we won the state."
The indictment alleges that Trump also made a number of false claims about the election in Georgia to Raffensperger and two other state officials during the call, including that nearly 5,000 dead people voted in the November presidential election, hundreds of thousands of ballots had been "dumped" into Fulton County and an adjacent county, and that he won the presidential election in the state by 400,000 votes.
According to the indictment, "by knowingly, willfully, and unlawfully making" false statements and representations to state officials, Trump committed a felony offense.
In a September 2022 statement, Trump called his conversation with Raffensperger "an absolutely PERFECT phone call" in which he did "nothing wrong." Trump has since repeated that that the call was "perfect," including at an Aug. 7 rally in New Hampshire.
The investigation grew from its initial focus, eventually probing a variety of efforts by Trump and his allies to undermine Joe Biden's victory in Georgia — including an alleged scheme to submit an alternate slate of electors committed to electing Trump, attempts to pressure or intimidate election workers and, in at least one county, accessing election software and data.
Over the course of about six months in 2022, the special purpose grand jury's dozens of interviews included Trump advisers such as attorney Rudy Giuliani and former White House chief of staff Mark Meadows, as well as Georgia officials such as Raffensperger and Gov. Brian Kemp. In January, it completed a report based on its investigation and turned it over to Willis, who ultimately decided to bring the charges before a regular grand jury.
Before any charges were released to the public Monday, the Trump campaign released a statement calling Willis a "rabid partisan" who "stalled her investigation to try and maximally interfere with the 2024 presidential race" and damage Trump's campaign.
Attorneys for Trump said in February that they would challenge any indictment filed by Willis' office.
In their statement following the indictment, Trump's attorneys called Monday's events "shocking and absurd."
"This one-sided grand jury presentation relied on witnesses who harbor their own personal and political interests— some of whom ran campaigns touting their efforts against the accused and/or profited from book deals and employment opportunities as a result," the Trump attorneys said. "We look forward to a detailed review of this indictment which is undoubtedly just as flawed and unconstitutional as this entire process has been."
Who is charged in the Georgia indictment?
The individuals charged in the case are:
- Donald John Trump
- Rudolph William Louis Giuliani
- John Charles Eastman
- Mark Randall Meadows
- Kenneth John Chesebro
- Jeffrey Bossert Clark
- Jenna Lynn Ellis
- Ray Stallings Smith III
- Robert David Cheeley
- Michael A. Roman
- David James Shafer
- Shawn Micah Tresher Still
- Stephen Cliffgard Lee
- Harrison William Prescott Floyd
- Trevian C. Kutti
- Sidney Katherine Powell
- Cathleen Alston Latham
- Scott Graham Hall
- Misty Hampton
Giuliani, a former federal prosecutor who served as mayor of New York City from 1994 through 2001, was Trump's personal attorney for more than half of Trump's presidency. Giuliani spearheaded the effort to, as he described it, find voter fraud, and as prosecutors claim, overturn the election.
In a July interview with CBS News, Giuliani's attorney Robert Costello described his role in the aftermath of the election as "among this election fraud group of lawyers and investigators, he was like the general of this army."
"So in lots of areas he didn't really have anything to do with it, but they reported the results to him, so he had to rely on his soldiers," Costello said.
Reached Monday evening, Costello declined to comment on the charges, but said he was "surprised."
Asked if he believed Giuliani was surprised, too, Costello said, "Yes, I believe so."
The indictment unsealed Monday paints Giuliani as being at the center of a team bent on reversing the election's results.
In a statement to CBS News, Giuliani called the case "an affront to American Democracy and does permanent, irrevocable harm to our justice system."
"The real criminals here are the people who have brought this case forward both directly and indirectly," Giuliani said.
Meadows, Trump's chief of staff during his final months in the White House, is charged with two counts, for allegedly violating Georgia's RICO Act and solicitation of violation of oath by a public officer, which stems from the Jan. 2, 2021, call to Raffensperger.
Those charged also include several other attorneys who worked on behalf of Trump or the campaign, including Sidney Powell, John Eastman, Kenneth Chesebro, Jeffrey Clark, Jenna Lynn Ellis and Ray Smith III, who made false claims about election fraud in public and also allegedly plotted to overturn the outcome of the election.
The filing also describes attempts by three of the co-defendants — Lee, Floyd and Kutti, a former publicist for Kanye West — to allegedly influence testimony from Freeman, the Fulton County election worker, at an official proceeding. Lee traveled to Freeman's home twice in mid-December 2020, while Kutti visited Freeman's house in early January 2021, the indictment claims.
Three other felony cases against Trump
The indictment in Georgia is now the fourth felony case filed against the former president.
In a New York State criminal case, Trump entered a not guilty plea on April 4 after he was charged with 34 felony counts of falsification of business records. The charges relate to alleged efforts to obscure the source of payments made to porn actress Stormy Daniels, who agreed in October 2016 not to speak publicly about an alleged affair with Trump. Trump has denied having the affair and any wrongdoing in connection with this case. He claims this case is also politically motivated.
He is also facing two federal cases filed by special counsel Jack Smith.
In Florida, Trump entered a not guilty plea on June 13 to 37 counts after he was indicted on allegations related to his handling of classified documents found at his Mar-a-Lago residence after his presidency. He also pleaded not guilty in August to additional counts filed in a superseding indictment. Trump has denied wrongdoing and repeatedly criticized Smith, calling him a "radical."
And in Washington, D.C., Trump pleaded not guilty on August 3 to federal four counts related to an alleged conspiracy to thwart the electoral vote count following his 2020 election loss.
–Ellis Kim contributed to this report.
MoreThe Racketeering Influenced and Corrupt Organizations Act is a powerful law enforcement tool.
At the heart of the indictment against Mr. Trump and his allies in Georgia are racketeering charges under the state Racketeering Influenced and Corrupt Organizations Act, or RICO.
Like the federal law on which it is based, the state RICO law was originally designed to dismantle organized crime groups, but over the years it has come to be used to prosecute other crimes, from white collar Ponzi and embezzlement schemes to public corruption cases.
It’s a powerful law enforcement tool. The Georgia RICO statute allows prosecutors to bundle together what may seem to be unrelated crimes committed by a host of different people if those crimes are perceived to be in support of a common objective.
“It allows a prosecutor to go after the head of an organization, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law,” Michael Mears, a law professor at John Marshall Law School in Atlanta. “If you are a prosecutor, it’s a gold mine. If you are a defense attorney, it’s a nightmare.”
Prosecutors need only show “a pattern of racketeering activity,” which means crimes that all were used to further the objectives of a corrupt enterprise. And the bar is fairly low. The Georgia courts have concluded that a pattern consists of at least two acts of racketeering activity within a four-year period in furtherance of one or more schemes that have the same or similar intent.
That means the act might allow prosecutors to knit together the myriad efforts by Donald J. Trump and his allies, like Rudolph W. Giuliani, to overturn his narrow loss in Georgia in the 2020 presidential race. Those efforts include the former president’s now infamous phone call in which he pressed Brad Raffensperger, the Georgia secretary of state, to “find” him enough votes to win.
At its heart, the statute requires prosecutors to prove the existence of an “enterprise” and a “pattern of racketeering activity.” The enterprise does not have to be a purely criminal organization. In Georgia, the law has been used to hold defendants accountable for a host of different schemes, including attempts by candidates to seek or maintain elected office and efforts by school officials to orchestrate cheating on standardized tests.
The sorts of crimes prosecutors could try to pin on Mr. Trump and his allies include solicitation to commit election fraud, intentional interference with performance of election duties, making false statements, criminal solicitation, improperly influencing government officials and even forgery.
The law lays out a list of 40 state crimes or acts that can qualify together as “pattern of racketeering activity.” It is broader than the federal law in that the attempt, solicitation, coercion, and intimidation of another person to commit one of the offenses can be considered racketeering activity. A number of the crimes Mr. Trump and his allies are accused of are on the list, including making false statements.
Mr. Mears said the law doesn’t require the state to prove that Mr. Trump knew about or ordered all the crimes, just that he was the head of an enterprise that carried them out. The main defense for Mr. Trump’s lawyers would likely be to show that the various actors did not intend to commit a crime.
The Fulton County district attorney, Fani T. Willis, has extensive experience with bringing racketeering cases, including some outside the usual crime family realm. She won the case involving public-school educators accused of altering students’ standardized tests. Her office is also currently pursuing racketeering charges against two gangs connected to the hip-hop world, including one led by the Atlanta rapper Jeffery Williams, who performs as Young Thug.
“RICO is a tool that allows a prosecutor’s office or law enforcement to tell the whole story,” Ms. Willis said at a news conference in August to announce a racketeering case against the Drug Rich gang.
A person convicted of racketeering under the Georgia law faces up to 20 years in prison and a fine, in addition to the penalty for the underlying crime.
James C. McKinley Jr., a senior editor on the Live team, has held a range of jobs at The New York Times, starting on Metro with the police beat and then City Hall. Later, he was a bureau chief in Nairobi, Houston and Albany, a correspondent in Mexico City, an investigative reporter in Sports and a pop music reporter in Culture. He returned to Metro to cover the Manhattan courts, and later became an assistant editor overseeing criminal justice reporters. More about James C. McKinley Jr.
Former president Donald Trump and 18 of his allies were charged in Georgia Monday evening with a serious crime — racketeering — in connection with their efforts to overturn that state’s election results in 2020.
Here’s what that means and how such a law might be used:
You’ll see it referred to as RICO. It allows prosecutors to weave together several alleged crimes into one racketeering charge that calls for up to 20 years in prison.
“It allows a lot of different things to be pulled together into a single very serious criminal charge,” said Clark Cunningham, a law professor at Georgia State University.
Fani T. Willis is the top prosecutor for Georgia’s Fulton County, which is home to Atlanta. She’s a Democrat elected to the job in 2020, and soon after she took office she launched an investigation of Trump’s attempts to overturn the election results in her state.
The indictment approved on Monday describes the former president and 18 co-defendants as “a criminal organization whose members and associates engaged in various related criminal activities” to try to change the election results. Its introductory pages cite a litany of alleged offenses by Trump and his advisers and supporters, including “false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, conspiracy to defraud the state, acts involving theft, and perjury.”
Willis had strongly signaled she would use the RICO law to seek charges against Trump and his associates. In an interview with The Washington Post last year, she said she likes applying the RICO statute because it “allows you to tell jurors the full story.”
“I have right now more RICO indictments in the last 18 months, 20 months, than were probably done in the last 10 years out of this office,” Willis said.
Or gang leaders or human traffickers — the law is designed to prosecute a criminal enterprise.
When people “hear the word ‘racketeering,’ they think of ‘The Godfather,’” Willis told the New York Times. But the concept of racketeering “has been extended to include any kind of organization that engages in a pattern of prohibited criminal activity to accomplish its goals,” Cunningham said. So this could be applied, legal experts theorize, to the collection of lawyers, political operatives and Republican legislators who tried to overturn the results in Georgia, allegedly at Trump’s behest.
The federal version of RICO was used in the 1980s to prosecute mob bosses who weren’t the ones directly committing the crimes but rather the orchestrators of a broader scheme. For example, Nick Akerman, a lawyer and former prosecutor, wrote in the Atlanta Journal-Constitution that he was able to tie a murder plot in California and an extortion plot in Brooklyn to bankruptcy fraud in New York to take down a mob boss. Akerman wrote that Trump and his allies’ alleged attempt to undermine the peaceful transfer of power “fits neatly” under Georgia’s RICO law.
It allows prosecutors to weave together a wide variety of alleged crimes, including violations of state and federal laws — and even activities in other states. To make a racketeering case, prosecutors need at least two underlying potential crimes in the furtherance of an enterprise. The law does not require a defendant to set foot in Georgia to be charged.
Willis has practice using RICO in creative ways. A decade ago, she was part of a team that prosecuted schoolteachers in a standardized-test cheating scandal. Right now, her office is prosecuting rapper Young Thug on racketeering charges related to alleged gang activity.
In many ways, Georgia was the center of the Trump campaign’s attempt to keep him in power after he lost the 2020 presidential election.
Trump unleashed his allies to try to find fraud in the state. In the weeks after the election, Georgia’s governor, its secretary of state and top aides — all of them Republican — publicly talked about the intimidation they received from Trump supporters after they resisted efforts to change the election results. “Stop inspiring people to commit potential acts of violence,” Gabriel Sterling, a top Georgia election official (and a Republican) publicly pleaded to Trump. “Mr. President,” he said, “you have not condemned these actions or this language.”
Trump called top officials himself. After Joe Biden’s win in Georgia was certified, Trump called the secretary of state, Republican Brad Raffensperger, and asked him to find enough examples of fraudulent votes to overcome his margin of loss.
The racketeering law in Georgia requires all these actions to be taken in furtherance of a scheme. His objective was “clear,” Caren Morrison, a former federal prosecutor now at Georgia State University, said of Trump, in an interview before the indictment was handed up. “Maintain the presidency by any objective possible.”
Prosecutors in Fulton County said the racketeering conspiracy charged in the first count involved all 19 defendants and activities not only in Georgia but also Arizona, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin and D.C.
Trump’s co-defendants include lawyers Rudy Giuliani and Sidney Powell, law professor John Eastman and former chief of staff Mark Meadows. The indictment also mentions 30 unindicted co-conspirators.
“Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump,” the indictment’s one-paragraph introduction says.
Prosecutors cited alleged false statements to the Georgia state legislature and high-ranking state officials, including Gov. Brian Kemp (R) and secretary of state Raffensperger (R); the creation of false electoral college documents in a Dec. 14, 2020, meeting at the Georgia Capitol; the harassment and intimidation of election worker Ruby Freeman; the pressure Trump and his advisers put on former vice president Mike Pence and top officials at the Justice Department; and the “unlawful breach of election equipment in Georgia and elsewhere.”
In the weeks following the election, Kemp, Raffensperger and other state officials — all of them Republican — publicly talked about the intimidation they received from Trump supporters after they resisted efforts to change the election results.
Georgia election workers from the secretary of state on down testified to the congressional Jan. 6 committee about the threats they faced for doing their jobs.
The earliest version of the Georgia law was enacted in the 1980s by a largely Democratic legislature, not long after the federal law came into being. Legislators at the time cited “the increasing sophistication of various criminal elements” for the need to have such a serious crime on the books. It has been expanded over the years to include potential digital criminal activity.
Some of the first prosecutions in the state were against politicians: Georgia’s labor commissioner was convicted of racketeering for efforts to stay in office after he lost the election. So was a county commissioner who tried to have his successor killed after losing the vote.
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Aug 15 (Reuters) - Criminal charges filed against former U.S. President Donald Trump in Georgia state court include allegations that he violated an anti-organized crime law known as RICO that is more expansive than its federal counterpart.
WHAT IS RICO?
U.S. lawmakers passed the federal Racketeering Influenced and Corrupt Organizations Act in 1970 to battle organized crime, notably the mafia. Most states enacted similar laws with various twists.
The main requirements under the federal RICO law are at least two underlying crimes and participation in a criminal enterprise over a long period of time.
Georgia's RICO law does not require criminal enterprises to be long running and lists nearly 50 underlying crimes that qualify as racketeering, compared with 35 under its federal counterpart.
Defendants who are found guilty of Georgia RICO charges face between five and 20 years in prison, and while federal law has the same maximum, it does not have a minimum.
The mafia in the U.S. has largely been dismantled, and RICO's application has been broadened to many other types of organized criminal activity.
Prosecutors have applied the law to all sorts of groups that they characterize as criminal "enterprises," including Wall Street banks and traders engaged in market manipulation.
Fulton County District Attorney Fani Willis, an elected Democrat who brought the charges against Trump, once used the law to prosecute more than two dozen Atlanta educators for allegedly scheming to cheat on standardized test scores in 2014.
Attorneys for the teachers said Willis overreached by deeming Atlanta's public school system a "criminal enterprise," but the convictions held up on appeal.
WHY ARE PROSECUTORS USING RICO?
RICO was originally conceived as a tool to go after mafia kingpins who kept their hands clean by parking ill-gotten gains in shell corporations and leaving the dirty work to underlings.
The law does not require prosecutors to prove that defendants directly engaged in criminal activity, just that they were part of a larger organization that did.
That means prosecutors would not necessarily have to prove Trump personally broke the law but knowingly coordinated with others who did.
WHAT ARE THE RISKS OF USING RICO?
RICO cases are inherently more complex because prosecutors must first prove the existence of a criminal enterprise.
The Trump indictment names an additional 18 co-defendants, including Trump's onetime lawyer Rudy Giuliani, his former chief of staff Mark Meadows and lawyer John Eastman.
Prosecutors will need to prove that Trump and his co-defendants worked together towards a common criminal purpose, which is not always as straightforward as proving an underlying RICO crime.
But each additional co-defendant is another that prosecutors could coax into testifying against the others.
(This story has been refiled with corrected picture captions)
Reporting by Jack Queen in New York; Editing by Noeleen Walder and Howard Goller
Our Standards: The Thomson Reuters Trust Principles.
Rudy Giuliani, the former US attorney who wielded RICO (Racketeer Influenced and Corrupt Organization) charges as New York’s crime-fighting hero, was indicted for violating Georgia’s RICO act along with Donald Trump and 17 others in connection with efforts to overturn the 2020 election on Monday.
It’s a long fall for the man who brought down symbols of Eighties excess on Wall Street like Ivan Boesky and Michael Milken, and spearheaded prosecution of the Mafia before going on to serve as NYC mayor — the same mayor who was hailed for his steady leadership in the wake of the attacks on September 11, 2001. Now, Giuliani faces a racketeering charge which carries a sentencing range of five to 20 years in prison.
“Trump and the other defendants charged in this indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump,” the 98-page indictment read, which included 41 criminal counts in total. Giuliani is among several other attorneys, campaign aides, and administration officials charged including former White House chief of staff Mark Meadows and John Eastman, one of the architects of the fake elector plot.
In July, Giuliani admitted in a court filing that his claims about Georgia election workers Ruby Freeman and Shaye Moss were false. Freeman and Moss were the targets of a vicious campaign of false conspiracy theories about the 2020 election pushed by Giuliani.
Last month, a disciplinary panel in Washington, D.C., called for his disbarment.
“Mr. Giuliani’s effort to undermine the integrity of the 2020 presidential election has helped destabilize our democracy,” the panel wrote.
Elsewhere, New York’s former mayor was mentioned 34 times in the Jan. 6 indictment, more than any other of the six co-conspirators identified in the document, and appeared as “co-conspirator 1,” playing the biggest supporting role in the narrative of Trump’s attempts to overturn the 2020 election.
If Donald Trump stood in the middle of Fifth Avenue after robbing the Chase Bank branch by passing a note to the teller saying, “Your money or your life,” he’d likely plead the first amendment as his defense: “I was just exercising my rights to free speech!”
Of course, he’d be wrong. Words that criminal defendants have written or spoken are used against them all the time. Perhaps you’ve heard of a confession.
Still, no one should discount the potential resonance in the court of public opinion of Trump’s messaging that he is the victim of a government attack on his first amendment rights. For the best of reasons, Americans prize the constitutional guarantee of free speech.
Hence, it’s worth a bit of a dive into why Trump has no serious first amendment defense in a court of law to the charges set forth in the masterful, 1 August DC grand jury indictment in which he’s charged with conspiring to overturn the 2020 election.
The law puts it this way: “Speech integral to criminal conduct” is not protected speech. UCLA Law professor and first amendment scholar Eugene Volokh has written that “[i]t’s now a standard item on lists of First Amendment exceptions.”
In the imagined robbery at Chase, the threatening note is integral to the crime of walking into a bank and taking the loot.
In parallel, in the DC grand jury’s indictment, Trump’s claims that the election was stolen were integral to the conspiracy, the agreement with others and the acts of working in concert with them to unlawfully obstruct the January 6 congressional certification of President Joe Biden’s election.
Surprise, surprise! Trump used words to do that.
The first amendment does not immunize him from conviction because he did so. As even former Trump attorney general Bill Barr explained, “All conspiracies involve speech, and all fraud involves speech. So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”
That’s more than common sense. In 1949, the supreme court expressly rejected a claim that “constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute”. The statute at issue criminalized conspiracies in restraint of trade.
Applied to Trump’s case, the court’s holding means you can’t tell your campaign subordinates or lawyers to “organize slates of fake electors in seven states”, if those individuals agree to follow your orders and do it.
The grand jury indictment fits supreme court law like a glove custom-made for a small hand. It recognizes that Trump has a right to make false claims. The problem, however, is with his actions.
As the indictment recounts. Trump “pursued unlawful means of discounting legitimate votes and subverting the election results . . . and perpetrated three criminal conspiracies.”
Specifically, the grand jury alleges that “the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”
These are actions performed through words. If proven, they are criminal.
So is lying to a court. According to the indictment, “On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia governor.”
That’s not free speech. It’s perjury.
As to Trump’s unrelenting false election claims, at the trial, there’s little barrier to Special Counsel Jack Smith introducing them into evidence. In 1993, the supreme court squarely held that “[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”
Trump’s many speeches advancing his phony claims of election fraud show his corrupt intent to use lies as a method and means to enlist state legislators and others into the scheme. At his trial, they will be admissible.
Before the trial, Trump has vowed to continue to “talk about” his case. He has a general right to do so, but no right to say whatever he wants in public about it.
On Friday, at a Washington hearing on the government’s request for a protective order to prevent disclosure of the discovery material that prosecutors will soon hand over to Trump, federal district court Judge Tanya Chutkan addressed the issue.
“Mr. Trump, like every American,” she stated, “has a first amendment right to free speech, but that right is not absolute. In a criminal case such as this one, the defendant’s free speech is subject to the rules.”
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“The fact that he is running a political campaign … must yield to the orderly administration of justice … If that means he can’t say exactly what he wants to say about witnesses in this case,” the judge declared, “then that’s how it’s going to be”.
Her warnings echo the supreme court’s broad teaching in the 1966 case of Sheppard v Maxwell. There, the court made clear that rights derived from the first amendment “must not be allowed to divert the trial from the very purpose of a court system . . .” including “the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources”.
To ensure “the purpose of the court system”, Judge Chutkan did what is normal in cases of significant media interest and cases where there are risks to witnesses or of publicly disclosed grand jury material tainting the jury pool. She issued a protective order.
By the order, Trump has been specifically told that he may not publicly discuss materials that the government designates as “sensitive”. They will include witness’s private identifying information, transcripts of their interviews and grand jury testimony.
The supreme court has said that where good cause for a protective order exists, it “does not offend the first amendment.”
It’s impossible to dispute that good cause exists where the record shows, as it does here, that just days before Judge Chutkan’s order, defendant Trump posted on social media the message, “If you go after me, I will come after you.”
No doubt with that message in mind, Judge Chutkan instructed Trump and his lawyers to “take special care” that their public statements could not be reasonably viewed as intimidating witnesses or affecting the future judgment of jurors. “[E]ven ambiguous statements,” she warned, “… can threaten the process.”
She has broad authority to impose consequences for a party’s disobedience. Under the Federal Rules of Criminal Procedure, “If a party fails to comply… ” the court may … enter any other order that is just under the circumstances.”
In addition, the DC district court’s local rules authorize trial judges to fashion special orders to protect the right to a fair trial in “a widely publicized or sensational criminal case”.
For now, Judge Chutkan foreshadowed use of the strongest hammer she has in Trump’s case to punish any future disobedience, a tool that has nothing to do with holding him in contempt and potentially jailing him.
“The more a party makes inflammatory statements about this case…,” she said from the bench, “the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury.”
That’s sensible. The shorter the time to trial, the less opportunity for the jury pool to be tainted by messages that attempt to get Trump’s story to them extrajudicially or that carry even a hint of intimidation.
As we all know, a speedy trial taking place long before the election is the absolute last thing that Donald Trump wants.
Laurence H Tribe is the Carl M Loeb University Professor of Constitutional Law Emeritus at Harvard University. Follow him on @tribelaw
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy
Fulton County District Attorney Fani Willis (D) announced criminal charges for former president Donald Trump and 18 others on Aug. 14 in connection with efforts to overturn Joe Biden’s 2020 victory in the state. Willis launched the investigation in February 2021. Read more: https://wapo.st/3DVA55X. Subscribe to The Washington Post on YouTube: https://wapo.st/2QOdcqK
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