Judging Freedom - Trump Indictment in Georgia - Now What? My analysis

Episode Date: August 15, 2023

Trump Indictment in Georgia - Now What?  My analysisSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Thank you. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, August 15th, 2023. Welcome to a special edition of Judging Freedom in which I will do my best to explain to you the indictment that was revealed last night in Fulton County, Georgia, against former President Donald Trump. We'll be back on air after lunchtime. Larry Johnson will be here at 2.15. How will the war in Ukraine end? And Phil Giraldi will be here at three o'clock. Why does the United States government still occupy one third of Syria? I didn't even know that until he told me this morning. But to the Trump matters, which of course are very serious. Here's

Fannie Willis, the district attorney of Fulton County, making her announce, well, you're looking at the indictment being brought up into the courtroom. I'll explain what that is in a minute. But first to Mrs. Willis announcing the indictment last night. This announcement was made about 1145 in the evening after most of the East Coast had gone to sleep. A Fulton County grand jury returned a true bill of indictment, charging 19 individuals with violations of Georgia law arising from a criminal conspiracy to overturn the results of the 2020 presidential election in this state. So last night, what you're seeing on your screen now, we all watched, I was on Newsmax, and we all watched that. That is a court officer under armed guard, she herself is armed,

bringing the indictment to the presiding judge of that county. Now, the indictment is a secret document. It's sealed. It can't be made public until the court unseals it. So Judge McBurney right there is signing an order, I think he's actually already signed it, unsealing the indictment, which allows the prosecutor to share it with the defendants who've been indicted, to share it with their lawyers, and of course, to share it with the press. In the courtroom in front of Judge McBurney were dozens and dozens of members of the press. He basically said to them, I'm not going to read the indictment. It's up to the prosecutor. So you can go home. I'm going to turn the lights out. So the press went to other parts of the of the courthouse.

And then after a lot of paperwork and processing and informing the defendant's counsel by telephone of who had been indicted for what, Mrs. Willis made that announcement and then they revealed the document, released the document. I've spent much of the morning studying this document for you. It's 98 pages. There are 19 people indicted here. There are 91 crimes charged. There are 30 unindicted, unnamed, uncharged co-conspirators. And the essence of the case against former President Trump is this, that Donald Trump and Rudy Giuliani orchestrated a scheme to have 16 Republicans claim that they were the true electors from the state of Georgia, and these 16 Republicans signed documents swearing that they had been chosen by the voters of the state of Georgia and indicating their intention to travel to Washington, D.C., either directly or virtually, in order to cast Georgia's electoral votes for Donald Trump. The charge is that they did this when they in fact knew that Joe Biden had won the election, knew that he had been certified by the

Secretary of State, knew that while there were some irregularities, there weren't nearly enough irregularities to overcome the 11,780 vote difference. But the trigger for the indictment is President Trump's famous or infamous, depending upon which side of the aisle you're on, telephone conversation with Brad Raffensperger, the then and now Secretary of State of the state of Georgia, responsible for counting the votes. Here's the conversation with Secretary Raffensperger. Listen to both parts. Listen to what the president said he wanted done, and then listen to what he said later on. You decide whether or not what he said later on about trouble coming if you don't do this is a threat or just an offhanded comment? So look, all I want to do is this. I just want to find 11,780 votes,

which is one more than we have, because we won the state. So tell me, Brad, what are we going to do? We won the election and it's not fair to take it away from us like this. And it's going to be very costly in many ways. And I think you have to say that you're going to re-examine it and you can re-examine it, but re-examine it with people that want to find answers, not people that don't want to find answers. Now, there are two tapes of that. A tape was made by Secretary Raffensperger's office and a tape was made by the White House. The Georgia prosecutor has both tapes. The tapes are identical. Everybody knew

that the tape was being made. There were about 25 people on the phone call. The president was using a speakerphone in the Oval Office. He had a large team of lawyers and advisors there with him. And Mr. Raffensperger, whose voice you did not hear, this conversation goes on for about an hour, Mr. Raffensperger was also on a speakerphone and he had his lawyers and his advisors and his senior aides there as well. There's no dispute as to the words that were articulated. They were it was Donald Trump's voice. Everybody recognizes the voice. The dispute, of course, is the import of what he said.

I want you to find. Does that mean I want you to make up or create out of thin air? Or I want you to go back and recalculate and see if you can find more votes for me using neutral means? I mean, this is an issue that the jury will have to decide. The indictment argues that this was not the beginning, but this was the midway point of an agreement, a conspiracy to cause these false electors to sign the documents, which they did sign and for which many of them have been charged with per president, we're not actually voting for the person, Joe Biden, Donald Trump, Ronald Reagan, Jimmy Carter. You are voting for electors pledged to that person. Each state has the same number of electors as it does human beings in Congress. So Montana has one member of the House and two senators, so they have three electors. Georgia has 14 members in the House of Representatives and

two senators, so it has 16 electors. When Brad Raffensperger, a Republican, and Brian Kemp, the governor, a Republican, certified that after all their counting and recounting and re-recounting that Joe Biden had won the state by 11,780 votes, that triggered the election, not of Donald Trump as president, but of the 16 electors for Georgia. At the same time that those 16 electors for Georgia were pledged to Joe Biden because he won the popular vote by that narrow 11,000 plus vote margin, at the same time that they signed documents saying that they were the electors, these 16 Republicans signed documents saying that they were the electors. These 16 Republicans signed documents saying that they were the true electors. Now, why did the Republicans do this? Well, they did it because Donald Trump and Rudy Giuliani, this is according to the indictment now, engaged in a conspiracy,

which involved a large number of people in Georgia and in other states to persuade the legislature of the state of Georgia to decide that the Republican electors were the true electors from that state. Now, the legislature didn't do that. That would have been the legislature overriding the wishes of the electorate, and they probably would have been thrown out of office had they done that. So the whole case comes down to conspiracy and RICO. All right, what is that? A conspiracy is an agreement by two or more persons to commit a crime where at least one of the persons commits at least one act in furtherance of the crime. Donald Trump has already been charged with a conspiracy on the January 6th case. I have argued since my law school days that conspiracy laws are unconstitutional

because they effectively punish speech and thought. But that's not the law on the land today. The law of the land today is if two or more people conspire to commit a crime and one of them takes a step in furtherance of called Clarence Darrow Tonight, in which I play the great trial lawyer, Clarence Darrow. There's a line in that script. I have a rehearsal tonight. There's a line in that script in which he's addressing a jury in a conspiracy case, and he says the following. The value of the dollar is way off because this happened in 1870. If a boy steals a dime, he's not a candidate for the penitentiary. But if two boys conspire to

steal a dime and then don't steal it, they are a candidate for the penitentiary and they will go to jail. What kind of a country does this to its own people? And then, of course, he answers the rhetorical question, ours. He's defending somebody in a conspiracy case, and he gets them off by persuading to the jury that it's nothing but a thought crime. By definition, there is no harm because the crime was not completed. That's one aspect of this. The other aspect of this is unique to Georgia and other states that have a RICO statute. RICO,

R-I-C-O, is an acronym for, fancy phrase, Racketeer Infinfluenced corrupt organization. That statute, originally enacted by Congress in 1970, the Nixon administration, was meant to cripple the mob. So if mobsters had extorted a million bucks from a businessman, give us your money or else. And the government could not only indict them for threatening him with a gun, the government would also sue them under RICO. And the beauty of RICO from the government's perspective is that it would allow the jury to extract from the defendant organization called an enterprise three times the money they stole. So this really did cripple the mob. So for every million the mob stole, when they got caught and they went to jail, whoever keeps the mob money was sued and was forced to cough up three times what they stole. So the statute was written

for mobsters, but it of course has been used all over the place since then. And Georgia, like New Jersey and some other states, have enacted their own version of RICO. have been charged, accuses them of putting together an enterprise, that's the conspiracy, to accomplish an illegal end. The illegal end is the 16 false electors. So Rudy Giuliani is accused of making up all kinds of stories about election fraud, some of which he since has admitted were not true, in order to persuade the legislature of Georgia to designate the Republican electors. His persuasive abilities did not prevail. But the indictment, which is known as a speaking indictment because it is laden with detailed evidence, depicts Giuliani as the mastermind of much of this, taking orders from Donald Trump and encouraging those who were working with him to stay quiet. In the act of doing this, of course, he has asked these people to break the law. He has asked them

to commit perjury, the 16 false electors. And when they did sign those documents, they did commit perjury. And so Giuliani is indicted for persuading others to commit the crime of perjury. Now, were all 16 electors indicted? No, only four of them were. What happened to the other 12? Ah, the other 12 cut a deal with the government. They are unindicted, uncharged, unnamed co-conspirators. They will be Giuliani's and Trump's nightmare. They will testify against the former president. They will testify against the former New York City mayor because the deal that they got is for immunity. That is the highest and best gift the government can give out. So the state of Georgia cut a deal with 12 of the 16 false electors, 12 of the 16 people who committed acts of perjury. Those 12 testified before the grand jury in return for immunity. The immunity, of course, only pertains

to this. They're not immune if they get caught with DWI next week or robbing a bank next month. It's immunity just for this, of course. And the immunity, of course, requires that they testify for conspiracy to prevent the Congress from counting the electoral votes. Just like all of those three, this fourth indictment, the one that I'm talking about now that came down last night, the essence of the testimony against the former president will come from the people closest to him, will come from 12 of the 16 electors whom Trump and Giuliani, according to the indictment, persuaded to engage in the act of perjury. Here's President Trump before the indictment came down. He's not very happy with this question. So on the tarmac of an airport, you can see the jet right behind him. So the question has to do with the first three indictments. And the questioner says, you can imagine his reaction to this is coming. Hey, Mr. President, would you consider a plea deal?

Is there any chance you take a plea deal in Georgia? We did nothing wrong. We don't ever take a plea deal. We don't take plea deals. It's a wise guy question. Are you going to change this to wise guy? We don't take plea deals because I did nothing wrong. It's called election interference. You know what that is? Because these indictments are brought out by Biden, who can't even put two sentences together. This is Joe Biden because he can't win the election by himself.

He can't win the election based on votes. So what they did is they got the attorney general to do it. And then you see how stupid they acted yesterday with the appointment of the special counsel. Call it special counsel. And what a crazy thing that was. And it's being laughed at all over the world. That, of course, was President Trump over the weekend in Iowa. He knew this indictment was coming.

I don't know that he knew it was coming last night, but you can hear him steadfastly saying we're not going to enter into any guilty plea. He also made a very interesting announcement. I'll read it to you because he printed it. So it's what we call a full screen. It's words on the screen. There's actually in which he calls it a witch hunt. Gary, if you could put that up now. This was the president released last night. So the witch hunt continues. by an out of control and very corrupt district attorney who campaigned and raised money on, quote, I will get Trump, close quote. And what about those indictment documents put out today, long before the grand jury even voted, then quickly withdrawn? Sounds rigged to me. Why didn't they indict two and a half years ago? Because they wanted to do it right in the middle of my political campaign witch hunt. What is he talking about documents released yesterday afternoon?

He's quite correct. There were documents released on the website of the Superior Court of Fulton County, which purported to be the cover page of the indictment. Somehow they were released too soon, and then they were taken down. That's not a crime. It's a violation of legal ethics that that came out because it's the release of an indictment, which is supposed to be secret and sealed from the moment the indictment is voted until a judge unseals it. So somebody dropped the ball there. That doesn't affect the case against Trump. President Trump has also announced that on Tuesday, excuse me, on Monday, next Monday, that's August 21st, he will release a detailed report refuting the charges in this indictment. He refers to it as a presidential

report of freedom. He can do that. My opinion, that is insane. That is going to lay out a roadmap of what his defenses are, which he doesn't have to do. One of the advantages the defendant or the defendants have in a criminal case is they don't have to say anything. They don't have to say anything. They don't have to prove their innocence. The defendants are innocent until proven guilty beyond a reasonable doubt and to a moral certainty. Donald Trump is innocent today. Donald Trump will be innocent during the trial.

Donald Trump will be innocent as the jury deliberates. Nobody is guilty until the jury finds them guilty and the judge validates that finding. Why would you lay out your defense now? For political reasons. This is the danger of the area where politics and law cross each other, where you do things to help yourself politically that may hurt you legally. So where does this leave Donald Trump? The allegations are very serious. The indictment is extremely detailed.

It alleges events that happened outside of Georgia. How could that be? Well, when you have a conspiracy or you have a RICO enterprise, you have to have predicate events, little things that the conspirators did to support the conspiracy or to support the enterprise. And those little things need not be crimes and they need not have occurred in the state of Georgia. So the indictment includes things that Trump and Giuliani did in Pennsylvania and in Arizona as well, because

when they were attempting to persuade the Georgia legislature to validate the false electors, they pointed to what they said and the reception they received when they said it in Arizona and in Pennsylvania. What kind of a trial will this be? Wow, a headache for the judge, I'll tell you that. So 19 defendants means about 40 lawyers at counsel table. They're going to have to try this in a gymnasium. I'm exaggerating a little bit. I don't know that courthouse. I don't know if they have a courtroom big enough to try it all at once. They probably do. Atlanta is a major city. It's the capital of Georgia, and Fulton County is the county that Atlanta and the surrounding suburbs are in. They probably have a courtroom big enough to do that.

The government says it wants one trial. If it wanted separate trials, these would be separate indictments. Expect all kinds of motions to be made, applications to be made by defense counsel to dismiss this, to throw that out, to challenge this, to challenge that. Headaches for the judge, but that I have helped you understand it. Larry Johnson, 2.15 today Eastern on how will this war end? Bill Giraldi, 3 o'clock today Eastern. Why is the United States continuing to occupy one-third at least of Syria? We have 183,000 subscribers on Judging Freedom. I can't thank you enough for this. Our goal is 200,000 by Labor Day, which is three weeks from yesterday. If you like my explanations of the law, if you like my Q&A with some very, very, very bright people, like, subscribe, tell a friend. Judge Napolitano for Judging freedom. Why are we here? Looking out for your liberty. Thank you.