Advisory Opinions - Indictment Watch: Georgia on My Mind

Episode Date: August 16, 2023

A grand jury out of Fulton County, Georgia has brought RICO charges against Donald Trump and 18 co-defendants. Sarah and David explain the 98-page indictment, how it holds up to the others, and Trump's interesting defense strategy. Plus: -David issues a very important correction -Will Trump be able to pardon himself? -Georgia RICO vs. federal RICO -Will this case stay in Georgia? -What if Trump wasn't lying? Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to another Advisory Opinion Emergency Pod. I'm Sarah Isger, that's David French, and yeah, I guess we gotta do Georgia. David, it's 98 pages, there's 19 defendants. Can we, is that the end of the pod? Are we good? I mean, we could stop it there.

But this actually has some interesting legal tweaks to it. It does. I want to start though with like my biggest takeaway from this, which is simply that unless you are a former prosecutor in the state of Georgia or defense attorney, there's a whole lot about Georgia state law that is unique to Georgia state law. And neither of us fall into the category of former Georgia state prosecutors or defense attorneys. And I think that's worth noting at the outset, federal RICO ain't Georgia RICO, that's for sure. And I think that's worth noting at the outset.

Federal Rico ain't Georgia Rico. That's for sure. Yep. Yeah, exactly. But before we dive into it, can I issue a correction, a very important correction from last podcast? Yes.

Okay, so last podcast, you know how we like to get things right here. Last podcast, when talking about the 1980s show, The A-Team, I referred to Mr. T's character as B.A. Barabbas, which an astute commenter noted in the dispatch that I was crossing the streams between my love of 80s television and Sunday school because Barabbas is the name of the person

that the crowd demanded that pilot release instead of Jesus before the crucifixion. So it's actually B.A. BaracR-A-C-K-U-S, not B-A-B-R-A-B-U-S. So my deepest apologies. Thank God we corrected that. Yeah. No, that was a big one. It's important to me.

I also have an update from the last podcast. I asked all Smith clerks to come forward and explain why marijuana was spelled with an H. And the answer was uh forthcoming so here we go judge smith has used that spelling since his appointment to the bench in 1988 and you will pry it from his cold dead hands it's the spelling used in the controlled substances act c21 usc 802 section 16 and was only amended to add the marijuana spelling with a J alternative while retaining marijuana with an H in 2022. See public law 117-215 section 2B. And that actually is the most quintessential Smith clerk email I've ever gotten. Thank you, Smith Chambers. On behalf of all Smith clerks, I think

you'll be proud of that. And I have to say that marijuana sounds more sinister than marijuana. Does it? I don't know. I don't know. Marijuana. I don't know. It just, when you have the H, that clear H sound. And maybe that's just me. Maybe that's just me. clear H sound. And maybe that's just me. Maybe that's just me. All right, David, we have a lot of counts here. We have a lot of co-defendants here. I think there's some big picture questions as well. Why don't you, you have thoughts on some of the intricacies. Let's start with the intricacies and then back out to the bigger picture. Yes. Okay. I am very glad you broadcast that. Look, we are not former Georgia defense attorneys. We're not former Georgia prosecutors. So this is going to be a 30,000

foot view. Okay. So here is the 30,000 foot view, Sarah, from my perspective is on the, it is both a simpler case than the Jack Smith case and more ambitious at the same time and in different ways. So here's what I mean by more simple or the simpler case. Some of the Georgia statutes at issue here, in particular, the Georgia statutes dealing with false statements, false documents, are actually quite simple and straightforward by comparison to, for example, 18 U.S.C. Section 241, conspiracy against rights or conspiracy to defraud the government. They are very direct and they basically say,

look, if you willfully and knowingly lie to a state official on a matter under their jurisdiction, you have broken the law. So just the lie itself, if it's a material, just the lie itself breaks the law separate and apart from whether it is tied to a larger plan or scheme like conspiracy against rights or trying to defraud the government or obstruct an official proceeding to go back to the federal cases. Just that simple, I'm lying to you,

to a state official operating under their jurisdiction on a matter under their jurisdiction, that breaks the law. And it doesn't have to be a lie to a law enforcement officer, like a police officer or the Georgia Bureau of Investigation. It can just be a lie to a state official in the conduct of their duties in a matter under their jurisdiction.

So that is a much simpler proof issue in many ways than the, again, I'll go back to 18 U.S.C. Section 241. You have to connect the allegations against Trump to a broader intentional scheme to deprive people of their voting rights, an example of 18 U.S.C. Section 241. So that's the simpler part, but it's also connected to a much more complicated part, and that is Georgia RICO. Now, I am loathe to opine on RICO, on racketeering statutes. Can I just also say that, so RICO, racketeering influence corrupt organization, that so rico racketeering uh influence corrupt organization uh there's federal rico states have ricos uh you will have if you know anything about rico it's coming from the federal one really if you've watched crime procedurals you know mafia drug cartels um georgia rico ain't federal rico

no rico itself is fraught um there's lots of people who will complain about the use of rico being overbroad even at the federal level and again george is much broader also though um this is why everyone should be a textualist because some of the problem with georgia rico is that you can read ge read Georgia Rico and it doesn't mean what it says. Like there's enough precedent that's like, it says a mandatory minimum of five years, but it's not, it's actually up to the judge and you have to actually know and practice in Georgia to know that. So that's just a shout out for textualism there of why textualism is nice. Yeah. Yeah. It's good. It's good. We like it. But the thing that is different about Georgia RICO, not the thing, but a thing that is different about Georgia

RICO is that the number of statutes and the breadth of the statutes that can, and that the laws that can be part of a RICO claim in Georgia or a RICO count in Georgia is very broad and includes these false statements. And so it's interesting, Sarah, that you bring up, you know, sort of the controversies around Georgia RICO because one of Fannie Willis's most famous cases is actually a RICO case that she brought against Georgia teachers. So if you remember, there was a standardized test cheating scandal in Georgia many years ago. And there were RICO claims brought against these teachers for falsifying standardized testing results. And there was a conviction secured against 11 teachers in this case. And what's interesting, if you really dive into that,

which about, I think it might've been somewhere around two in the morning, I found myself down this rabbit hole. If you really dive into it, you'll find out that Fannie Willis got some real pushback from the left on that, on that case saying this was an overly ambitious RICO prosecution against teachers who

really had done nothing wrong other than be dishonest and here they are facing a racketeering charge. But she won. She won. She won 11 convictions on racketeering charges in that teacher cheating scandal. So the Georgia RICO statute is broad, but also, and there's one last thing on the 30,000-foot view.

So on some of the case, statutes are more simple and direct. Some of the statutes are more broad and expansive. And then here's the last thing that I don't think enough people are talking about, Sarah. She brought a case against 19 defendants. That's one nine, 19 defendants. And is hoping to prosecute them all together at once

within six months. On camera. On camera. Okay, I'm gonna go out on a limb here and say that is not going to happen. That all 19 defendants on camera in a Georgia courtroom in six months, prosecuting 19 co-defendants together with this many interlocking facts, and some of them separate facts entirely, some of them closely connected,

some of them the same facts. Holy smokes. I mean, that's a challenge. And then if Judge Chutkan in the Jack Smith, January 6th indictment sets a trial date in January, like the prosecution wants, you're not gonna have a concurrent Georgia trial at the same time as the federal trial in DC on similar facts. That's just not

going to happen. And then you're going to roll into the trial date for the Manhattan case. And then you roll into the trial date for the Florida case. I don't know how this case gets tried before the election, Sarah. That's where I am on it. All right. A few things on all of that. One, yeah, she wants to try this case and all the defendants connected to it in six months, but she doesn't want to try 19 defendants. She'd like to try far, far fewer. Yes. Because what she'd like is now that the indictments have been rolled out for many of them to come into her office and say, let's make a deal. Now, this is interesting because obviously there's lots of reasons why one would probably rather be on the witness stand than the defense table.

Yes. But some of the normal considerations are a little harder to apply in this case. So, for instance, a lot of, you know, in these large RICO-ish cases, a lot of the defendants don't have the money to do this, to hire counsel and to pay for what could be a very expensive large trial. So they flip. They take whatever plea deal is offered. That's a little different here.

A, many of these defendants are of means, but even for the ones that aren't super of means, remember there's the Trump legal fund that's existing out there. So some of the pressures that would normally come to bear on some of the like more mafioso foot soldier type folks, a little harder here, a little harder to at least guess because of some of the other pressures coming to bear. There's also, of course, are the feds going to bring charges anyway? Like you flip in Georgia,

but then the feds, you know, for the six unindicted co-conspirators in that January 6th case, I think they're in an unusual spot sort of waiting to see whether they're going to be potentially added to that indictment. Mark Meadows is one of the indicted co-conspirators in Georgia, but there's been reporting that he helped and provided evidence in the federal case.

So is he like, why was I indicted here? I was happy to help. I don't know. case so is he like why was i indicted here i was happy to help i don't know so there's all sorts of stuff around that second note i would make is that at the federal rico level i just want to talk a little bit about some of the differences because i think they illuminate why this georgia case is a little weird in ways, and a little weird in the way that it makes it much easier for the prosecutor. Much easier, yes. So you mentioned all of the potential predicate offenses in Georgia RICO. The list is incredibly long compared to the federal list. That's a huge one, first of all. But, you know, at the federal level, you know, I talked to federal prosecutors about this and what they'll tell you is like, I'd much rather bring a drug conspiracy charge

if the gang was a drug gang. Because you just tell the jury, they sold drugs, this guy sold drugs, this guy drove the car to sell drugs, and this guy picked up the drugs. Bada bing, bada boom. We don't use RICO for that. The problem is that your gang in this question,

they sell drugs, they carjack cars to do it, and they have a little sex trafficking business on the side. Well, you can't just charge them with drug conspiracy. That's where RICO is going to come in. So A, you need all of those predicate offenses to be listed in the federal RICO thing. You can pick two of them. It's like a meal deal at McDonald's. You pick a few. But the big thing at the federal level is proving the enterprise. They have to be a cohesive group. It can't just

be people criming together. It has to be a gang. So that actually makes gang RICO cases, not easy, but easier because it's like, are you a member of the gang? Yeah, cool. There was an enterprise. But where you have something like this, if this were at the federal level, it'd be incredibly hard to prove what the enterprise was.

It's not the whole Trump campaign, for instance. So you have some part of the Trump campaign forming a separate enterprise. None of that's a problem in Georgia. So you don't have to prove the enterprise. And then you have basically any laws you want, you know, in the pick two Happy Meal can become part of your RICO case. And someone asked me like, okay, but doesn't that mean like maybe rule of lenity should apply or vagueness or something? No, because it's not ambiguous or vague. Yeah, it's just broad.

Yeah. Like to the point that I'll admit I'm a little bit baffled by its broadness, but I don't think it's like a due process violation. I think Georgia is allowed to just really, really criminalize stuff and make it easy for prosecutors to bring these cases. Yeah. Really? Yeah. You know, that's the thing.

So I've been, I've had, I've been looking at Georgia for, Sarah, you know this, we've been talking about Georgia for two years plus. Been looking at Georgia and I've been looking at Georgia. And I've been looking at Georgia because the criminal statutes were just so much easier to fit around the conduct

than the federal criminal statutes. The Georgia criminal statutes, I mean, my gosh, if you look at their false statement statute, it really is, did you willfully make a material false statement statute. It really is. Did you willfully make a material false statement to a public official on a matter, you know, under their jurisdiction? The end.

The end? The freaking end, like that. So, and so you look at some of this stuff in the complaint and you're like, Trump's got a challenge. Now, it's obvious that he is going to, at least if he's setting the strategy as opposed to his attorneys, he's, he's hired some pretty formidable local attorneys, including somebody who successfully defended Gucci Mane among other sort of hip hop figures. So if, but if you're looking at these,

if he's in charge and what he indicated on Truth Social is that he wants to re-litigate the election to sort of restate a lot of these claims that he made back in 2020 and early 2021, I would submit to you, Sarah, that's a mistake. Because the jury, again, if you look at sort of Georgia law regarding jury instructions and intent, et cetera,

the jury can absolutely convict someone even if they sit there on the stand and say, I didn't intend to do, the jury can disbelieve the intent. And it strikes me as more credible to say to a jury, look, I was just asking questions. I wasn't making assertions. Because if you're making a lot of these claims as assertions, they're so transparently ludicrous that they're hard to maintain with a straight face. And so it's going to be very interesting to see what ultimate legal strategy he takes. Because once again, knowingly and willfully making a false statement to a public official on a matter under their

jurisdiction, and you've committed a crime, that's what you've done. All right, I've got a place where I think you and I are going to disagree because we have disagreed in the past. I think our disagreement will continue. I also think I'm on the other side of like everyone on this, but I'm very certain I'm right. Okay, I like it. I like it.

Everyone's wrong, I am right. Everyone thinks that the phone call, the infamous phone call where Donald Trump calls Brad Raffsenberger and says, find me 11,800 votes, one more than we need, that that's a smoking gun for the jury here. Here's what I will concede. Anytime you have an audio of the defendant saying something like that, it's jury bait.

Like, of course that's helpful. I'm not denying like sort of the practical reality of having an audio of the defendant saying that. However, it's a really, really long phone call. And I know you've read the whole transcript. Yeah. And the actual gist of the whole phone call is there's all these different frauds to pick from. We won by hundreds of thousands of votes. The dead people are worth

100,000 votes. The provisional ballot fraud's worth 100,000 votes. All you have to do is find 11,000 votes. In context, what he's saying is like, the fraud's already out there. I don't need you to fix all of it. I just need you to investigate the amount of fraud necessary for me to win. You don't need to fix all the fraud and show that I won by 10 points like I think I did. Yeah. And so I feel like everyone out there

talking about this single line in the audio, actually not a smoking gun at all. Or at least, sorry, that's not the smoking gun in the audio. The smoking gun in the audio is where he then threatens him with criminal prosecution if he doesn't find the 11,000 votes. So every time, you know, I was on ABC last night and they had this prosecutor saying like, he just admitted to the crime and this is the, you know, this is what the jury's going to hear over and over again. And I was like, but like, that's what defense attorneys are for. They're going to play the three minutes before or the 30 minutes before that thing lasted forever. Yeah. So I'm curious, David, if you

want to stand by your smoking gun audio, if you'd like to come with me to a different part of the audio for the smoking gun. Well, here's what's interesting. So what Fonny Willis did, and it's funny, it's not paragraph 113. It's like act 113, I believe. Oh, we're going to have to go over that too. Anyway, sorry. Oh, I know, I know.

So in act, I believe it's 113. She goes in on that call. But here's what's interesting. She did not focus in on the threat of criminal prosecution. This is where the breadth of Georgia law really comes in. She just said, look, he just lied a bunch on that call. And all of those lies, because they're of material facts, are actionable.

So she kind of- She picks a third way, actually. It's not the smoking gun, find the votes. It's not the smoking gun, or I'll prosecute you. It's the, there were 100,000 dead voters. There were 100,000 provisional ballots. There were ballots under the table. Like those themselves,

like she doesn't need to actually do any of the hard lifting here. Exactly. That's why when I read that, I was like, oh, I feel dumb now because I had been spending two years saying, oh, find the votes.

There's the veiled threat of, not so veiled threat of prosecution. That's solicitation to commit election fraud. Okay. I had been spending all my time thinking along those lines and she just went for the much more direct play, which was he got on the phone and lied a bunch and that's a crime.

And that's why when I looked at that, Sarah, we were texting back and forth at near midnight and I'm just working my way through and I got to that paragraph and I was like, midnight and I'm just working my way through. And I got to that paragraph and I was like, oh yeah, there's the third way right there. You just take advantage of this broad Georgia statute and tell the jury he lied to Brad Raffensperger and the function of Brad Raffensperger's official duties on a matter under his jurisdiction, bing, bang, boom, done. And that's where Trump's got the challenge. That's where he has the challenge, I think. So I think she kind of third-weighted us here on this.

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Terms and conditions apply. All right, so now let's get to the very online pet peeve. And it's not just online. I get texts from friends that are like, they're indicting him for telling people to watch TV. They're indicting him for giving a speech, you know, a rally speech after the election. Oh, sigh.

So for instance, this indictment, it's a state indictment. It's going to look very different than a federal indictment. And so I just feel like we have a whole lot of very smart lawyers who practice in federal courts who don't see a lot of state indictments. And so the format alone can actually throw you a little. Normally in a federal indictment, all the paragraph numbers would be sort of allegations of criminal activity or the storytelling.

And the way that these are numbered and listed, it looks like they're listing the criminal activity, these are numbered and listed. It looks like they're listing the criminal activity, but it's actually the overt acts as part of the conspiracy necessary to meet the RICO statutes. So it's a mix. It's sort of like a speaking indictment meets overt acts list. So let me give an example. If I'm being indicted for kidnapping, what you're going to see then in a Georgia-esque indictment is like one charge, kidnapping, you know, grabbing someone and holding them against their will, whatever the definition of kidnapping is in Georgia. Over at Act One, Sarah went to the hardware store and bought duct tape. Yeah. And then it would be the equivalent of all these people being like, what, buying duct tape is a crime now? No,

right. It's not. Or, you know, in a Rico type case, uh, Sarah was the getaway driver over at act one. After leaving the bank,

she turned right onto the tollway. Turning right is a crime now. No, but it's an overdact and furtherance of the unlawful activity. Buying duct tape is going to help you kidnap someone. Turning right from the bank is how you helped get the bank robbers away from the bank. And it's also worth noting, it doesn't then matter that when I go to kidnap the person and I've got my duct tape with me, that I then bang my head on the door jam, fall over,

and the victim, my intended victim of the kidnapping, grabs the duct tape and ties me up with it. As in, I don't need to be a good kidnapper either. I don't need to succeed in my kidnapping for this conspiracy to commit kidnapping charge. So yeah, there's a whole lot of stuff in this indictment. Like, maybe more than I would have included for the purposes of a public indictment, frankly, that is, he gave a speech, he tweeted this out,

this whole other thing happened in the state of Pennsylvania. Yeah. I've had jurisdictional questions. Nope, your overt act can happen elsewhere. The crime you committed had to happen in Georgia. Yeah. And so I think a lot of people

are getting sort of caught up in some of the 98 pages that are not relevant to the crime. I'm so glad you brought that up because I can freely confess I'm so used to reading the federal indictments.

It took me a minute for my brain to recalibrate. It took me more than a minute. I found it really hard to read this indictment. Yeah, it took a bit. So just to make it super concrete, Act 1 says,

on the fourth day of November 2020, Donald John Trump made a nationally televised speech falsely declaring victory in the 2020 presidential election. Approximately four days earlier, on or about October 31, 2020, Donald John Trump discussed a draft speech with unindicted co-conspirator individual one,

whose identity is known to the grand jury, that falsely declared victory and falsely claimed voter fraud. The speech was an overt act in furtherance of the conspiracy. I was like, for a minute, I was like, what are you talking about, Willis? And that's funny because I was referring to different strokes. What are you talking about, Willis? And then it's Fonny Willis. That's going to be the name of this episode, I'm afraid. I think it's already done.

It's too late. What are you talking about, Willis? So, but I realized, oh, yeah, okay, this is like a kidnapping charge where it says, on the fourth day, Sarah Isger bought duct tape. And then on the Wednesday, David French purchased a getaway vehicle. And none of those things are unlawful in and of themselves, but they show the acts that took place as a predicate for the crime. the acts that took place as a predicate for the crime. And then when you actually get to the counts, the criminal counts themselves, it's made very clear. It's like, this is the crime

right here. And so the way I've kind of thought of this is that essentially the best way to think about this case is it's an incredibly sprawling indictment that's about lies. It's about lying, conspiring to lie, attempting to coax, coerce, and cajole others into lying. And it's sort of like the Michigan case, if the Michigan case, which is the attorney general brought a case

that was very narrowly focused on the fake electors in Michigan, did not include Trump. If the Michigan case and the Jack Smith case, which was focused on Trump and not everybody else, had a baby. This is the Michigan and the Jack Smith case in one big case. She brought a case about the whole conspiracy

from start to finish, alleged conspiracy, I'll say, the entire alleged conspiracy from start to finish, and then targeted every person subject to her jurisdiction for each crime committed in her jurisdiction. So this is a really ambitious indictment, but Sarah, you hit the nail on the head that when you actually look at the laws on their face, it's hard to see where the law has been stretched because the law is already broad. Right. Well, that brings me then to my next question, which is let's move some big

picture here. Right. I have lots of big picture thoughts on this case. But first, let's rank the four cases, criminal cases that we have. That's the New York Manhattan DA's charges related to hush money payments in the campaign finance case. The documents, national security, willful retention case down in Florida,

which is federal. The January 6th federal case, and then this Georgia election fraud case. Put them in terms of the strength of the case or the legal jeopardy that you think Donald Trump is in, however you want to phrase it. Okay, I'm putting documents and Georgia as 1A and 1B in this sense. I think documents is cleaner and simpler. It's a very, the proof problems, there's minimal proof problems. It's very clean.

It's very simple. Georgia is obviously not as clean and not as simple, but the laws are quite broad. And then here's the other factor that makes this really interesting for Trump. It's a state prosecution. And we'll get into this for Trump. It's a state prosecution, and we'll get into this, Sarah. It's a state prosecution for state crimes in a state where if this case stays at the state court, which we can talk about that, it's a state prosecution

for state crimes under broad and clearly applicable state statutes where no president can pardon him and neither can the Georgia governor. So in that sense- So that's upping the legal jeopardy for you, even if the case maybe isn't a strong- Exactly, exactly. And then I would put the Jack Smith indictment, a clear, you know, a level below Georgia.

And then the Bragg, New York City indictment so far below the Jack Smith case that you can't even see it with a telescope. All right. My order is the same, but I separate out one and two more than you do. Okay. As in, I think it's documents case one,

Georgia case two, D.C., January 6th case three, and then, yeah, I mean, there's like's documents case one, Georgia case two, DC January 6th case three. And then, yeah, I mean, there's like a fourth case there. And the Bragg case, which I maintain, is the worst indictment I've seen in quite a while. It's the one that made us actively angry. Yeah, people disagree with us on that. I think, I wonder now when they've seen other better vehicles,

whether they'd come around to saying like, yeah, yeah, I mean, if I was putting my resources into one of these cases, I wouldn't put resources into the New York case if they were competing, for instance, for my time or energy. But it was the first one. And so I felt like a lot of people

who really dislike Donald Trump were like, I'll take what I got. Even though, again, it made us angry. My reasoning on one and two, I don't disagree with a single thing you said. And actually, I'm a little bit persuaded by your back end jeopardy problem. They're like, you have to both include the strength of the case itself, but also what happens after conviction. Yeah. But a few things. One, the resources and credibility of federal prosecutors and federal courts makes the document retention case stronger to me. Fonny Willis has had problems in and around this case. There were unforced errors that make her look uh unqualified isn't the right word on

like she doesn't get it so for instance zealous maybe i don't know and some of that by the way isn't her fault i kind of put that in quote marks because like yeah it's all her fault but like she is an elected official she has to run for re-. So yep, she's trying to fundraise off this and get Twitter followers off this. She subpoenaed a Republican official to testify and then immediately turned around and hosted a fundraiser for his Democratic opponent, having one judge then say to her, this is a real what were you thinking moment. No, you can't do that. Yeah. So she lacks some credibility for me and I think will lack credibility on sort of a national stage. You know, she's on MSNBC all the time. She was hinting isn't even close to the right term when they were asking her questions about how this case was going to

proceed. She was like, we're going to do it by this date. You know, we're looking at Donald Trump and who we're indicting isn't going to surprise you. Like, okay. I mean that she certainly said it better than that grand juror did, but it was sort of the same thing. So that's why I put that number two. I will also say on the back end side, you've made a good case for why it's bad for him, but let me make the case for why it's not as bad. Okay. So if Donald Trump wins the presidential election, we've talked about the potential of a self-pardon at the federal level, that they couldn't continue to pursue the case while he's in office because

it would be Donald Trump's executive branch pursuing Donald Trump, like you can't prosecute yourself. The same is probably true at the state level. So, you know, you have two types of federalism, horizontal federalism, vertical federalism. We've been talking a lot about the horizontal federalism across the three branches of the federalism, vertical federalism. We've been talking a lot about the horizontal federalism across the three branches of the federal government, but there's vertical federalism between the states and the federal government as well. And imagine a world where, you know,

every state where Donald Trump pursued electors, was it nine, six, whatever it was, some high number, that they all file criminal charges. And he's president. And now he's supposed to be defending criminal charges in six different states at the same time. Now imagine it's not for fake electors. Imagine it's just lying statutes.

And all these states charge a sitting president with violating their state law because he said, if you like your health care, you can keep your health care. There's no way that we're letting criminal process continue at that point when the purpose is so obviously to distract, delay, otherwise impede the office of the president. So on the Georgia case, if anything is still going on and he wins the election,

that thing's getting put on hold too. You'd have to wait until he's out of office. No, I agree with you that as a practical matter, if you're talking about whereas Donald Trump as president could tell the DOJ to just drop all the prosecutions against him if they're talking about whereas Donald Trump as president could tell the DOJ to just drop all the prosecutions against him if they're still ongoing or pardon himself, arguably, if there's a conviction. On the Georgia case, he has no such authority, but his lawyers would make a

motion to the court and say, you know, look, we've got a challenge with China and Taiwan. We literally cannot be in Fulton County courthouse for three months defending this case. And a trial court is going to delay the case until the end of his presidency. It means he still faces legal jeopardy, but the timing is altered. So I couldn't agree with you more. As a practical matter, you're just not gonna have a sitting president showing up in a state courthouse

unless it's like for a speeding ticket. Yeah, and even then. Or something along those lines. All right, let's get to some big picture questions here. Number one, and you've already hinted at it, does this thing stay in state court? Now, there's a practical answer to that, which is there is a removal statute that I don't know what? Didn't even know that existed in U.S. code. But it does exist. David, I'll get your read on it.

I think it's unlikely to do a lot of work in this case. So there's the practical question of can this be removed from state court to federal court? There's also, though, the prudential question of sort of what I just said, like, is it good for the country to have partisan elected district attorneys and judges who are elected versus federal prosecutors and federal judges that are not elected in terms of, I don't know, belief in our judicial system moving forward. And I ask that because the answer would have felt very obvious to me ahead of time that obviously the federal system

would encourage a lot more faith in the system. But it hasn't, right? Everyone's been running to their partisan corners anyway, accusing Jack Smith of all manner of sin and the judges. So how can Georgia be worse in that sense? But it still gives me pause. What are your thoughts? Yeah, I think you raise a really interesting point

about partisan DAs. But in a lot of ways, this is all baked into our state criminal system. There are elected DAs from coast to coast in the United States. There are elected state court judges from coast to coast in these United States. And so what you're seeing is something play out on the national stage that plays out on the local stage all the darn time, which is you'll see a prosecutor bring a case. They're an elected official. They're going to play up their role in it. They're going to play up their heroism. They're going to turn this into part of their reelection campaign.

This is state criminal law, folks. This is the way it goes. Yeah, but this is a president, a former president. I mean, it just is different. It is different. In terms of the partisan stakes, if you will. In terms of what it looks like that a Democrat is going after a Republican who's trying to run for president, and she's fundraising off of it for her own election. Yeah, yeah.

Yeah, it's playing out on a national her own election. Yeah. Yeah. Yeah. It's, it's playing out on a national stage, something that happens on a local stage all the time. I mean, if you grew up in the small town South, you know, partisan, partisan DAs prosecuting public corruption is just a thing that's been going on for a really, really long time. And one of the ways in which a clever defense lawyer can exploit that is by saying, ladies and gentlemen, the jury, this is not a nonpartisan, unbiased prosecution in pursuit of the law. This is a biased political prosecution. Just look at this prosecutor fundraising off of it. You know, I would blow up, if I was a defense attorney, I would blow

up a fundraising email and say, is this, is this what this is really about? You know, so you do have in that ability to raise these issues as, you know, as a matter of defense. But the fact of the matter is we do have the state and the federal, we do have the local and the federal criminal justice systems, and they are different. And they have different strengths and different weaknesses. And this, in what we're going to see, I fear, is some of those weaknesses play out in what now would be actually the trial of the century more than Jack Smith's, if you get a pile of Trump defendants in the same room as Trump. And so you're going to see some of these flaws play out on the largest possible stage. And I'm with you, Sarah. I completely acknowledge their flaws.

They're just not novel. They're just more apparent in the circumstance. All right, let's talk about the practical federal officer removal statute. So this is 28 U.S.C. 1442. Again, something that on the criminal side, not a lot of people are aware of. The civil side is actually far more commonly used, often for military contractors who get sued and say they were acting under the direction of the Department of Defense, and therefore they can remove it to federal court because they were acting under color of state law for these civil purposes. On the criminal side, it's a much, I think, higher bar. And so people have been sort of tossing this around. I think everyone who's looked at it has kind of said, they'll try. I don't think it'll work. It's certainly a better argument than some

of the past attempts they tried, as you pointed out, David, in the New York case. And that failed, I think, quite obviously for a lot of reasons. This one's actually within the ballpark, but I still think it's out in left field. Yeah, I agree with you because for the removal to stick,

Trump has to have been acting as president, not as presidential candidate. Because let's not forget, a presidential campaign is a private affair. It's a private entity. It raises money. Both Biden and Trump campaigns were raising money for what was a private endeavor, a running for president. And so when you are acting in your capacity as a presidential candidate, you're not acting in your capacity as a president.

Now, here's the interesting question, Sarah. Here's the interesting question about, let's circle all the way back to Act 113 of the complaint where Trump is allegedly lying to Brad Raffensperger about all of the various fraud allegations in Georgia. Could it possibly be that she focused on the lies rather than the threats? Because arguably the threats would have been in his capacity as a chief law enforcement officer.

I did think about that. Because the only way you can threaten someone is because you're president. If you want to steer way clear of the claim that Trump was acting in his official capacity, you don't necessarily want to state a claim that he was threatening as the chief law enforcement officer of the United States, threatening Raffensperger with prosecution. Look, because I think this is a fairly remote possibility, we don't need to spend a lot of time on it. There's also Jeff Clark, the DOJ official, who I think actually maybe even has the best 1442 removal claim and what happens when one of the defendants gets removed and the whole case and yada yada. Let's leave that for a different discussion because I want to stick with some big picture philosophical questions. Another one I got, David, from a listener is, what should Trump have done

if he had been right? So assume for a second the election had been stolen, and Trump knows it. What was he supposed to have done to avoid prosecution, let's say, under the D.C. version or the Georgia version? Go. Do you know what I'm asking here? Yeah, yeah, yeah. Like, so what if there had been 100,000 dead people who voted or something like that?

Yeah, so he's calling the Secretary of State and Secretary of State's like, I don't want to look into it. And he's like, you have to look into this. The election was stolen. 100,000 people, dead people voted in your state. Come the F on. In a way, that's an interesting, the question is, so what if he wasn't lying?

Yeah. Right. So the prosecutor has to prove that he's lying, that it's a knowing and willful, that it's a lie. And so the short answer to the question is, well, you file a complaint in court that, for example, just to go refer back to the case, does not include factual allegations that your own lawyer says before the complaint was filed are not accurate.

Okay. But this gets kind of tricky because I can imagine a scenario where you don't have the evidence to prove it in court. So you're going to lose your court case. But you're asking the state official to figure out why more people voted in their state

than are registered in their state. You know, something like kind of obvious, but you don't know. I don't know. I'm trying to take this hypothetical as seriously as I can. Like, it can't just be the case that you have to win in court. I don't like that answer, and so I'm not allowing you to give it.

Try a different answer. Well, I guess I'm somewhat confused because there is nothing that would prevent a prosecutor from, well, in theory, a grand jury is a check on this, but let's be real. So in theory, if you have actual substantial evidence

that 100,000 dead people voted and a prosecutor tried to prosecute you when you had the actual evidence that dead people voted, I mean, that's a very effective defense to the criminal charge. Okay, so Donald Trump's hosting a press conference on Monday where he's supposed to release a report

that's going to prove all of his claims. Again, I want you to run with the hypothetical here. You and I expect that report to contain absolute nonsense. But what you're saying is, if that report had a list of all the dead people who voted and it's the difference, you know, it's 12,000 votes in Georgia, that then the prosecution would not continue.

Well, on that count. Yeah, yeah. But the thing is, you know, if you actually go and you think for five seconds about what are you supposed to do if you actually have really credible evidence of fraud? And on the one sense, it is one thing that Trump did, which was to file lawsuits that purport to present that evidence. Now, the problem that Trump had is he didn't have the evidence to present.

And in fact, the opposite was true. is he didn't have the evidence to present. And so- And in fact, the opposite was true. You had the Secretary of State of Georgia, point by point, refuting all of his supposed claims. Exactly. So the short answer is,

to the question is, well, we actually have legal mechanisms that permit people to mount election challenges. And guess what? There have been times when they have been successful. We have talked about the North Carolina congressional race where the election was set aside because of the balloting problems. And so it's not as if this is a weird, unusual thing, this sort of idea that you can file credible election challenges. I mean, look, we had the Gore challenges to Bush in 2000, where as vigorously as the Bush administration

or the Bush campaign contested the Gore challenges, this sort of idea that Al Gore was committing a crime by requesting a recount of the butterfly ballots or no, no. So, you know, I think part of this is the MAGAverse has convinced a certain number of Americans that all Trump was doing was raising good faith questions and what was he supposed to do?

And the actual claim is not that he raised good faith questions that turned out not to be true. That's not the claim that has to be proven beyond a reasonable doubt. The claim that has to be proven beyond a reasonable doubt is that he was knowingly and willfully lying. And so that's the claim. And so I think we need to be really specific about that.

And it is not, in fact, legally perilous to bring election challenges in the United States and has really never been legally perilous. Now, we do have a Rule 11. You have to satisfy Rule 11, which, by the way, a number of Trump's lawyers didn't. Rule 11 meaning frivolous claims. Right. You can be punished for bringing as a lawyer. Yeah. And a client. Yeah, exactly. Yes, thank you.

By the way, just footnote on that North Carolina case, because I like to remind people that the only reason, arguably, that that North Carolina case was able to work was because North Carolina has a law against ballot harvesting. And there's a whole lot of has a law against ballot harvesting. And there's a whole lot of people that are for ballot harvesting, meaning someone, I can show up to David's house and take his ballot, you know, bring him an absentee ballot, have him fill it out and take it for him and drop it off to go vote. I understand why that sounds really nice and it

makes it easier for people to vote. But in reality, what happens is if you catch someone with a thousand ballots stuffed under their shirt, they haven't violated any laws unless there's some sort of ballot harvesting law that like you have to actually be a relative or have permission of some kind. Like you can't randomly show up to people's houses, stand over them while they fill out absentee ballots at the nursing home and then go collect them all.

Because why? This is just my pet like operative side coming out. One of the best ways to steal an election, a local election, mind you, is actually not to change votes or break into the ballot machines or all these complicated things that people think like that's how you steal elections. No, you ballot harvest in your opponent's area. You take those thousand ballots you collected and you throw them in the trash. Yeah. And then you just deprived your opponent of a thousand votes. Yeah. That's how you screw with a local election, which is what was happening in North Carolina. Again, roughly, we don't need to get into all the details, but they never would have been able to prove what he was going to do with all those ballots he had collected.

Yeah. Like that would have been very hard at least to prove that he was planning to not turn them in. And so I am for ballot harvesting laws. The end. Thank you for coming to my TED Talk. Yeah. Well, I think you raise a really good point

because the alarm, the actual alarm related to ballot harvesting is the opposite of the alarm that you hear from people. Because normally when you hear ballot harvesting is a problem, a lot of people say, well, you artificially inflate the number of ballots. No, no, no, no. You could potentially artificially deflate by having the ballot harvester just throw away everything they collect. Yeah. I mean, you know which zip codes are going which direction, which precincts. That's some really basic operative information that you'd better have heading into election day. Anyway, this is all beside the point. I mean, David and I have run through many times in the wake of the 2020 election why each of the, well, all you have to do is X, Y, Z to steal an election doesn't actually work. I've written about it. I've tried to write up the different buckets of election fraud that people have come up with. It's really hard. And you can go watch the videos of people

trying to steam open envelopes in order to get to the underlying ballot or change it, et cetera. Good luck. Try doing it at your house. It's always going to be cheaper and easier to just try to get more legit voters. Yeah, and I mean, and I also ran, I even did the time that it would take. So if it takes you five minutes per ballot to steam it, change it, seal it,

how many people you'd have to have working in order to get the number of ballots we're talking about. I have fully acknowledged that election fraud, true election fraud at a local race is actually quite possible to change the outcome of a sheriff's race, et cetera. But to do it at scale, to change a statewide election, which is what you would need for a presidential election,

even one that's close, really hard slash impossible slash no one has shown me how to do it yet. And I'm, you know, don't forget, I've done this for three. My job on the Romney campaign in 08 and 12 in particular was actually to think of ways to steal election. Now, I also want to differentiate between actual election fraud. When I mean election fraud, I mean fraudulent votes. That is different than changing the rules of the election and the run-up to the election to have more of your people vote legally. There's great arguments for that happening in 2020. I find it frustrating too, changing the rules of the game with a month or two until the election.

But I don't consider that election fraud. It is something else. Right, right. No, I'm glad you made that distinction because the actual, if you're talking to a Republican who is, and this is something, even though I'm not a Republican, I'm independent. I'm definitely not a Democrat either.

This is actually something that bothered me in the run up to 2020, which is there were a lot of changes to voting rules in the name of dealing with the pandemic that felt like a lot of ad hocery. It felt... And I think there was a partisan thumb on the scale. One side tried to make it easier when they were in charge for their side, for their voters, to be able to vote more easily. Now, you can argue like,

well, we should make it easier for everyone to vote. I hear you. But you don't change the rules, claim pandemic with a few weeks to go. There were lawsuits about it. In every case, those lawsuits lost. But at least there, I'm sympathetic to the arguments about changing the rules in the run-up to the election

because it changes everyone's strategy. It's unfair to one side versus another. Every change will benefit one side versus another in a zero-sum game. That's just how a zero-sum game works. But it's not election fraud. Right. And the other thing is,

all of that was exacerbated by Trump sort of saying, don't vote by mail. Exacerbated isn't even the right word, David. It was just, I don't, yeah. Because traditionally, vote by mail was not, there wasn't a partisan lean on vote by mail. It was to Republicans. Oh, that's right. You're correct. That's right. No, there absolutely was a partisan advantage to vote by mail. Oh, no, there was. It was to Republicans. Oh, that's right. You're correct. That's right. No, there absolutely was a partisan advantage

to vote by mail. That's right. I'd forgotten. You're right. You're right. But now there's a huge partisan advantage to the other. It was a small partisan advantage to Republicans because older people tended to vote by mail and older people tended to lean Republican. It was relatively small. Now it's a huge partisan advantage the other way. Well, that's a great point because I do distinctly remember in 2000, as the votes were coming in for Bush, we were sitting there, all of us Republicans were rubbing our hands with glee

that all that was left were the absentee ballots. Yep. The vote by mail because that helped Republicans. It's military. were the absentee ballots. Yep. The vote by mail, because that helped Republicans. It's military. It's old people. Yeah. Yeah.

Yeah. All right. We've gotten a little off track here, acknowledge. Any closing thoughts on this Georgia case? Because I'll be very honest, I would like to talk so much less about the indictments.

That's why we're marking these as emergency pods and separate pods so that you, dear listener, can skip them. Yeah. As I wish I could. Not that we want you to. So I would say number one, top line,

I'm glad that there appear to be no more indictments coming down the pike. I will admit, you remember how right after the Jack Smith indictment we both got on this podcast and there was just an atmosphere of gloom? Yes.

I had a little bit of that as I was reading this new Georgia indictment in part because it felt like a walk back down memory lane about how dumb all these vote fraud claims were and how many people I know were so led astray by them. I kind of had this like walk down memory lane of just, oh man, this is what led people astray.

Are we kidding here? This cast of characters, this Mos Eisley cantina of lawyers and operatives led people astray. Are you kidding? So I'm going to be glad not to deal with this for a little while,

but it's all like, it's the sword of Damocles is hovering over us. We're months away from the first trial beginning. And my gosh, what, you know, the amount of work we're going to be doing to dive into all of that. But look, on a bigger level, I am actually, and I've said this, I've written this, the American institutions have been under

a lot of fire. Some of it earned because they failed in some pretty gross ways. Some of it unearned where people are trying to manufacture distrust in the system. But overall, the American legal system has performed very, very well in response to Donald Trump's effort to steal the election, both Republicans and Democrats. And I have to say, there were nits that I would pick

about some inclusion of some things in that indictment. But I thought, based on what I know about Georgia law, based on what I know about the underlying facts, I thought it was actually a pretty darn good piece of lawyering and pretty clever in a lot of interesting ways. And I feel like with the big exception of the Manhattan indictment, which is a big exception, the election-related investigations have been not just very credible, but very necessary to dealing with

what was an absolutely unprecedented attack on our democracy in 2020. So overall, I'm depressed that we have to do this, but I'm encouraged overall, again, with NITs that I would pick, but overall encouraged with the way it has played out. I would have brought the documents and the documents case alone.

That's it? I think that's it. Interesting. Interesting. So Ruth Marcus wrote this in the Washington Post. In a very short op-ed, I wish she'd been able to write sort of a longer long form version of it

Ruth Marcus not a conservative right and she said that she thought she wished that the Georgia case for prudential reasons

had not moved forward because the D.C. case had indicted such similar conduct like let that one go forward if it fails case for prudential reasons had not moved forward because the DC case had indicted such similar conduct. Let that one go forward. If it fails, okay, let's talk about it. But this idea of dual sovereigns allows

you to bring a state and federal prosecution at the same time. But it doesn't mean you should. Very much the Jurassic Park, you were so busy wondering if you could. You didn't stop and think about whether you should. I agree with her, but take it a step further, which is this was always going to be so divisive for the country. I think the election claims are more tenuous

as opposed to the document claims, which are spot on. I absolutely understand and think it's a close call, this idea that like, well, so we just don't indict him for anything he did after you know the 2020 election and the run-up to january 6th and what about the fake electors i hear that i think it's hard i might have been more persuaded if it had only been the fake electors claim because i do think that one is tied up in a little bit of a tighter bow. But I think, yeah, I don't think this is great because they're broad, because they're vague,

because they can be wielded in a partisan manner moving forward. I'll be happy to be proven wrong. But I put my flag out today that I think I would have done documents case and then a very narrow federal fake electors case and no state cases because I think the state cases,

because of the partisan nature of the prosecutors and the judges, because they are state law, when in fact we all sort of feel a sense that whatever Donald Trump did was an act against the country, not just Georgia, that probably not. So I would be, I think that is a, if you say documents, fake electors, I can respect that. I'm good with that. All right. But I would be, I would be, if you made me, you said, David, you don't get the four. Right. You get the two. I would go documents, Georgia. Okay. I mean,

and the reason why I do documents at Georgia is I just think that George, so this election. I don't like a partisan prosecutor bringing the case. And again, for prudential reasons, like for the good of the country reasons, not for legal reasons. And that's why, because the feds had a case on the fake electors, I would have given them the fake elector ball to run with. Because I get that everyone's still poo-pooing,

obviously DOJ and the judge and all of that. But I think their poo-poos are harder to make. I also think, so I, you know, but my view would be the documents case, again, the documents case is just, my gosh. Not a close call. It's not a close call. On the law or prudentially, frankly, I have just zero prudential concerns with the documents case. It's why I keep just sort of saying like, yeah, yeah, that one's obviously going. Yeah. On the Georgia, when you're talking about a state, when you're talking about a presidential election, it's actually 50 state elections. And the vast majority of our administration and regulation of voting in this country is run through states. This is how we do

it. And so the state laws are actually going to be far more clear and applicable when it comes to voting than they are at the federal level. And I think that this case sort of illustrates that. I mean, there is a very straight ahead, not double bank shot, not triple bank shot about lying, about inducing people to lie, about forgery, et cetera. The Michigan fake electors case, for example, this is kind of, as I said, this is if Jack Smith and the Michigan Attorney General had a baby. The Michigan fake elector's case is just a freaking straight ahead case. You lied when you said you were the actual elector. a cleanness to the state claims here that I think is important while fully acknowledging,

as you have very eloquently said, that there is a partisan prosecutor problem. Now, in one sense, you would say, well, that's mitigated by having a Republican governor, but the Republican governor doesn't have clemency power here. By the way, also though, there's been all this,

you know, Brian Kemp sucks because he hasn't removed Fonny Willis. He also doesn't have that power. Why is that a talking point? He can't pardon people. He can't remove prosecutors. Please. With the backseat lawyering on Twitter. Oh my god, it's so painful to watch.

Yeah. No, I'm with you. I'm with you. Yeah, Ron DeSantis has powers that Brian Kemp doesn't have. How about that? Yes. And as someone from Georgia pointed out, that doesn't make Brian Kemp a useless, you know, someone's like, well, fine. Then he's just a suit and he has no power. No. The state constitution gives their power, just gives their governor just different powers. A lot of them. Exactly. But just not in this realm. Each state has experimented with this. Texas has actually a notoriously weak governor

in a lot of ways. The lieutenant governor is actually pretty powerful. Each state has found its own way to build a nice little system of government. It's not your state. Stop worrying about it. Yeah. All right, David.

We're still going to record our normal podcast this week. Because we just can't get enough podcasting. That's right. And we have some really interesting topics. This selective enforcement case coming out of DC on Black Lives Matter versus pre-born Black Lives Matter and vandalism is fascinating. We actually have to talk about the Hunter Biden plea deal once more. Now that we have one of the defense attorneys asking to withdraw because he believes he is now a

witness because don't forget, they actually signed the plea deal before they went into the judge and she said she wouldn't agree to it. So all sorts of interesting things about what happens when the prosecution makes the deal, signs the deal, and then the judge gnaw dogs the deal. Do you still get the benefit of your deal with the prosecutor? Ooh, interesting. And many more other cases. Plus we have an amazing guest for the next episode. Lots, lots to do. Lots to think. Yeah, I'm particularly excited about talking about this Black Lives Matter versus pre-born Black Lives Matter chalking case out of the DC Circuit that features friend of the pod, Naomi Rao.

It does. And I mean, look, selective enforcement is such a loser argument. I've never seen it actually win. This is the idea that like, well, you pulled me over for speeding, but the car next to me was speeding too. You will lose that case every single time.

Yeah. This is a selective enforcement case. And they won. Blah, blah, blah. Okay. So we're not doing indictments all the time here. This is an emergency pod. I made it an emergency pod

because I don't want to do indictments all the time. So if you're listening this far, I don't know why you should have skipped this entire episode. We'll see you next time.