Legal Experts Say Georgia Charges Against Trump Violate Democratic Norms


The Georgia grand jury’s indictment of former President Donald Trump over his efforts to overturn 2020 election results may violate democratic norms but that doesn’t mean the case will be resolved quickly, legal experts told The Epoch Times.

Their comments came after President Trump and 18 co-defendants—including several of his former attorneys—were indicted in Fulton County, Georgia, late on Aug. 14 over President Trump’s efforts to contest the election in Georgia.

Charges range from violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, soliciting the violation of an oath by a public officer, conspiracy to commit forgery in the first degree, and conspiracy to commit filing of false documents.

Mark Miller, an attorney at the Pacific Legal Foundation, said that although he’s neither “a supporter nor opponent of President Trump,” he’s worried about a growing trend.

The new case, along with prosecutions in New York, Florida, and the nation’s capital, “each reflect a troubling tendency.”

“Our country seems to be falling into criminalizing politics. It doesn’t serve the country’s best interest for either party to criminalize what is already a dirty game, yet here we are,” he said.

Mr. Miller is disturbed by the use of RICO, which was first enacted at the federal level in 1970 to go after the mafia. More than 30 states have adopted their own RICO statutes.

But because the law was written “very broadly,” it has been used to prosecute people that RICO “wasn’t really intended to go after.”

“Most notoriously,” RICO was used to prosecute pro-life activist Joseph Scheidler for protesting against abortion.

But the Supreme Court ruled in his favor in 2006, saying RICO “was not meant to go that far, that Joe’s free speech rights cannot be curtailed by claiming he was threatening other constitutional rights,” Mr. Miller said.

President Trump will argue that “he’s allowed to believe and say that he thinks he won the election, and as applied here in Georgia, that he thinks a recount would have turned up the votes that he needed to win—no different than [when]Vice President [Al] Gore felt [in the 2000 election]that if you counted every dimpled chad in Florida, he would have won,” according to Mr. Miller.

“And then you layer on top of it, that so many of these co-defendants are lawyers,” he said.

“So now you’re not just saying that President Trump’s not allowed to believe that he won and try and fight the outcome no different than Vice President Gore, but you’re saying that he can’t rely upon lawyers.

“These lawyers are giving Trump advice, saying, ‘Yes, you can seek to overturn the election, and here’s the strategy.’ Now it’s ‘no, you shouldn’t have listened to those lawyers—in fact, what they were telling you to do was criminal.’”

Vice President Gore challenged the outcome in 2000, as did John Kerry in 2004 and Hillary Clinton in 2016, and “we all know about 1960 with Nixon and Kennedy in Chicago.”

“It’s just not unreasonable for Americans to believe that their candidate got shafted, and we’ve never previously said that that amounts to criminal behavior,” Mr. Miller said.

Before these Trump indictments started, “it seemed that the country was moving on,” but now “every time he’s indicted, he seems to get more popular,” he said.

RICO Lawyer Weighs In

Attorney Etan Mark of Mark, Migdal, and Hayden in Miami, who has handled many RICO cases, said he wasn’t surprised that the charges were brought under RICO, which he described as “a useful statute when you’re looking to encompass claims against a scattered group of people without any real formal affiliation, but they are all working towards a common objective.”

The indictment begins “with the premise that it’s a crime to try to overturn a federal election,” and then officials are “delineating all of the things that Donald Trump did or said in furtherance of that particular crime,” including statements on social media and communications with state officials in Georgia.

“There’s obviously a difference between using the judicial process to claim that there’s been some defects in connection with the election, and getting in front of a group of people and making false allegations,” Mr. Mark said.

The difference between Mr. Gore and President Trump is that once the courts had ruled, “Gore conceded.”

But President Trump went on national television telling “everybody who would listen that the election was stolen and the results are illegitimate … [and]he used his people and he himself participated in communicating with various officials throughout the state of Georgia in order to get them to engage in illegal conduct in order to help him overturn the election,” according to Mr. Mark.

“And I think that is what the crux of the indictment is,” he said.

Indictment ‘Does Not Seem Strong’

Attorney Curt Levey of the Committee for Justice said the indictment “certainly does not seem strong,” noting that he was “struggling to understand” what exactly the underlying crime was.

“It doesn’t get explained enough that conspiracy to do X is not a crime unless X is a crime,” Mr. Levey said.

The indictment seems like the election interference case brought in the District of Columbia by special counsel Jack Smith, he said.

“[They’re saying,] ‘We really, really don’t like the way you handled your challenge to the election results,’” Mr. Levey said. “‘We really think you behaved badly, and now we’re going to try to squeeze it into some existing statutes.’”

The legal attacks on President Trump’s lawyers are also unsettling, he said.

“Any lawyers who wanted to help Trump had to basically resign if they were working for a big law firm, had to face having bar complaints brought against them,” Mr. Levey said.

“There was a clear message intimidating anyone who might want to help, from aiding Trump or anyone else that the left thinks is a horrible person, and now we’re seeing it again, actually indicting those lawyers.

“There are so many democratic norms that are being destroyed by this witch hunt, this attempt to put Trump in prison. One of them has to be the right to representation. I don’t think these lawyers did anything wrong. They certainly took aggressive positions, but that’s what a good lawyer is supposed to do.”

Cornell law professor William Jacobson told Steve Lance of NTD, sister media of The Epoch Times, that Georgia authorities are doing “a shock-and-awe attack on Donald Trump and his supporters.”

“I don’t agree with Donald Trump’s conduct after the election, but I also don’t think it was criminal,” Mr. Jacobson said.