If there’s anything to be said for the sprawling grand jury indictment on 41 counts brought against former President Donald Trump and 18 of his supporters, it’s that Fulton County District Attorney Fani Willis is going all out.
The case is built around a charge related to the law called RICO, which is a tool that has been used with increasing boldness by local prosecutors across the country, especially in Fulton County. The Georgia version of the law, because it is broadly written, makes it a particularly powerful charge.
“It’s a type of criminal liability that can get you in trouble for things other people do,” said Ashleigh Merchant, a Georgia criminal defense lawyer with experience in RICO cases.
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Willis has said that she plans to try all 19 defendants at once, a strategy that will undoubtedly lead to extremely long and complicated proceedings, but one that could give her office certain advantages.
And she’ll be navigating a federal prosecution of Trump for his attempts to change the outcome of the 2020 election that has taken a much narrower approach.
Willis’s bold strategy will be put to the test in what will be an aggressive defense put forward by Trump’s lawyers and by lawyers representing the other more affluent defendants.
New legal questions will be raised, and Willis, because of the way he has structured his case, risks that at least some of the defendants may transfer the proceedings against them to federal court, where the legal conditions could be more favorable. for them.
Here are the strengths and weaknesses of the Willis strategy:
Georgia’s comprehensive RICO law
What is the Georgia RICO law? 1:20
Georgia’s version of the RICO law (Ranger Influenced Corrupt Organizations Act) is broader than its federal counterpart. By using it, Willis is able to encompass conduct that in itself is not necessarily criminal, and with it, a larger number of defendants.
“You have a very, very wide net and you get very, very small fish that weren’t meant to get caught in there, get caught in there,” said Sandy Wallack, a Georgia criminal defense lawyer with experience in RICO cases.
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The indictment describes 161 individual episodes that Willis says were overt acts in service of the larger conspiracy to overturn Trump’s election defeat in the state. Some of the charges she describes amount to separate crimes on their own, and are additionally charged as such. But many of these acts refer to alleged conduct that is not criminal in itself and that, in other contexts, could be considered expressions of freedom of expression protected by law. For example, the indictment cites several of Trump’s tweets and public comments in which he exaggerated false claims of voter fraud.
However, Georgia’s RICO statute requires only two precedent criminal acts to establish the kind of organized crime enterprise that then nabs anyone who aided the larger conspiracy.
The fact that Willis relies on RICO also allows it to circumvent certain evidentiary rules. Defendants will be faced with evidence related to conduct they were not even a part of or would be excluded under the evidentiary rules that would apply in non-RICO cases.
If convicted on the RICO charges, the law dramatically increases the potential maximum sentence defendants in the case would face, as the rule allows a maximum of 20 years in some circumstances.
A defendant who might otherwise have faced a maximum sentence of five years on a false statement charge (a sentence that would likely be significantly reduced by the state Parole Board) could now be subject to many more years of imprisonment. prison because that conduct was involved in a RICO conviction.
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Forty more charges, some stronger than others
In addition to the RICO indictment, which includes all 19 defendants in the indictment, the Willis case is made up of several other standalone charges, some stronger than others, legal experts told CNN.
The Georgia computer fraud statute used to charge some of the defendants with violating voting data systems in Coffee County is very broad, according to Georgia criminal attorney Andrew Fleischman, increasing Willis’ chances of conviction.