Fani Willis’s grand-slam indictment against Donald Trump

Like a clean-up hitter in baseball, Fulton County District Attorney Fani Willis has hit a grand slam home run with her indictment of former President Donald Trump.

It is by far the most comprehensive of the four criminal indictments now pending against the former president, both in terms of the kinds of crimes it alleges, the places in which they occurred and the number of people charged.

Georgia, which was ground zero for Trump’s lies about the election outcome and his effort to overturn the results of the 2020 election, now looks like it will also be ground zero for those seeking to hold the former president accountable. The indictment filed by Willis draws on various state laws to name what Trump did in the wake of the 2020 election and rightly calls the Trump campaign a criminal enterprise for the coordinated efforts it made to overturn the election results.

While Jack Smith’s Aug. 1 indictment seemed narrowly focused and tailored to avoid any unnecessary legal complexity, Willis appears to have chosen a different path.

The Georgia indictment lays out, in soup-to-nuts fashion, many crimes. Some are already well known and, if proven, are quite serious. Others, although also serious, have received much less publicity.

The indictment does a service to American democracy by providing the broadest possible framework to describe the crimes that Trump and others allegedly committed in Georgia and elsewhere. As the indictment states in its succinct introduction: “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.”

“That conspiracy,” the indictment continues, “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 … including, but not limited to, Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, and in the District of Columbia.”

The charges contained in the 41-count indictment involve Trump and 18 others, a rogues’ gallery of collaborators in the ex-president’s alleged criminal enterprise, including Rudy Giuliani, John Eastman, Mark Meadows, Sidney Powell and Jeffrey Clark. The named defendants are liable to severe criminal penalties, with the very real prospect that some, or all of them, will end up joining the 47,000 people already serving time in Georgia prisons.

At the heart of Willis’s grand slam indictment is the charge that Trump’s conduct violated Georgia’s laws against racketeering, a type of organized crime typically involving fraud or extortion. This charge conjures images of the kinds of things done by Al Capone or Jimmy Hoffa — and now of the four-time indicted former president.

Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO), enacted in 1980, was written more broadly than its federal counterpart. Under Georgia’s law, it is easier to prove a pattern of racketeering than it would be with a federal RICO charge. As The Guardian notes, “It requires prosecutors to show the existence of an ‘enterprise’ — and a pattern of racketeering activity that is predicated on at least two ‘qualifying’ crimes.”

Among those crimes the indictment lists: making false statements concerning fraud in the Nov. 3, 2020 election; corruptly soliciting Georgia officials, “including the Secretary of State and the Speaker of the House of Representatives, to violate their oaths to the Georgia Constitution and to the United States Constitution by unlawfully changing the outcome of the November 3, 2020 presidential election”; and creating “false Electoral College documents and recruit[ing] individuals to convene and cast false Electoral College votes.”

The Georgia indictment also charges Trump and others with conspiracy to commit election fraud. Those efforts include what Trump calls his “perfect phone call” to Georgia Secretary of State Brad Raffensperger, in which the then-president asked him to find 11,780 votes and warned he might face criminal prosecution if he failed to do so.

Using the racketeering charge for Trump’s election tampering efforts, seems, at first glance, to be going into what Georgia State University law professor Anthony Michael Kreis calls “deeply uncharted territory.” Applying it in this context, he says, “is very new. That is something that we haven’t seen in Georgia before, and it hasn’t really happened elsewhere before.”

And because of its complexity — trying a racketeering case with 19 defendants, each with their own lawyer and legal strategy — it will not be easy to pull off.

But, given Willis’s track record, Trump should take this racketeering charge very seriously. In earlier cases, Willis has used it in innovative ways.

For example, in 2015 she used it successfully in prosecuting 12 public school employees, teachers, testing coordinators and others who conspired to inflate the results of standardized tests in the school district in order to meet federal and local testing standards, to receive bonuses, and  to keep their jobs.

Eleven of the 12 were found guilty.

In March 2021, Willis hired John Floyd, a noted expert on racketeering, to serve as a special assistant district attorney. We can expect him to play a prominent role in the Trump case.

Last year, Willis told an interviewer that racketeering charges offer a prosecutor the chance to provide a jury with a complete account of what happened in a complex crime like the one she is accusing Trump and the others of committing. Jurors, Willis explained “want to know what happened. They want to make an accurate decision about someone’s life. And so RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”

Given the breadth of the racketeering charge that Willis has brought against Trump and his collaborators, she seems intent on doing just that.

In addition to its comprehensiveness, two other aspects of the Georgia indictment make it particularly worrisome for Trump and his alleged co-conspirators.

First, because the Willis indictment rests on state law charges, there would be little Trump could do to derail it even if he were returned to the White House in 2024. The president’s vast clemency power does not extend to state offenses.

Moreover, according to Georgia law, even if the governor were a Trump ally — the current governor, Brian Kemp, who resisted the former president’s entreaties about the 2020 election, is not — he does not have the authority to grant pardons or commute sentences. That authority rests with the Georgia State Board of Pardons and Paroles, an independent five-person panel appointed by the governor.

Second, unlike the federal trial for his election tampering, when the Georgia case against Trump  goes to trial, it is likely to be televised. Georgia law allows cameras in the courtroom so long as the judge approves. The judge would need a “compelling reason” to keep them out.

If it is televised, America will see defendant Trump sitting quietly with his lawyers while he is prosecuted by a Black woman in a city which Joe Biden carried overwhelmingly. This is hardly the visual which our reality-TV-star-turned-president generally prefers, though it may play into his overarching narrative of victimization in a demographically changing America. 

In the end, the filing of Willis’s indictment means that Georgia will be, as lyrics in the well-known song by Ray Charles say, very much on Trump’s mind — as well as on the minds of Americans seeking a forum to examine the damage he has done to our democracy.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of several books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not necessarily represent those of Amherst College.