A Law Used Against the Mafia — and Now Trump (2023)

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From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

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Today, 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.

On Monday night, Donald Trump was indicted for a fourth time since leaving office, this time by a local prosecutor for his attempt, along with 18 alleged co-conspirators, to overturn the 2020 election results in the state of Georgia.

Specifically, the indictment brings felony charges against Donald John Trump, Rudolph William Louis Giuliani, John Charles Eastman.

I spoke with my colleague, Richard Fausset, about why of all the charges now piling up against Trump this one may be the hardest for him to ever escape.

It’s Tuesday, August 15.

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So Richard, it’s almost 1:00 AM on Tuesday morning, because grand juries don’t care about newspaper deadlines or journalists’ sleep schedule. So I’ll spare you any small talk and just jump right in. I want you to give us an overview of this fourth indictment against Donald Trump, which we got just about two hours ago.

Sure. This is a state of Georgia indictment that charges former President Trump and 18 of his associates and allies of a really broad range of crimes, all of them in an effort to overturn the election in Georgia. And in a lot of ways, Michael, it is exactly what the prosecutor here in Fulton County, Fani Willis, insinuated if not promised. Which is that she is very fond of the RICO statute, the racketeering statute in Georgia, that allows prosecutors to tie together all kinds of different crimes and actions in one big package and show that there’s an organization that exists to carry out a corrupt scheme, and that’s in fact exactly what she did here. There’s a really interesting passage in the very front of the indictment that explains what this corrupt scheme was. And if you’ll give me one moment, I’ll find it for you.

The introduction states, “Defendant Donald 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 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.”

So right there, you have in very plain language a real narrative. It’s the story, according to these prosecutors, of a group of people who got together at a set period of time and committed a number of acts in furtherance of a corrupt aim, which was to overturn the very narrow election loss of Donald J. Trump, in Georgia, in November, 2020.

Right. You had warned US that this would be the district attorney’s approach in this case, when we talked to you about this investigation, many, many months ago. But just explain racketeering, RICO, as a legal concept, how it applies here, and why it seems so central to this indictment.

Well, very often, the way we see racketeering used by prosecutors, it’s a way to tie a bunch of people working together toward a common, nefarious goal and hold them all accountable up and down the chain of command. And we saw this in the context of the mafia, where you would see people getting arrested for extortion. But then once they were arrested, perhaps convicted, some other low-level foot soldier would come along and commit an act of extortion. The shot callers remained somewhat immune.

In the case of RICO, you can show a jury a pattern of illegal activity committed very often by a group of people, and you’re able to start holding people accountable who may not have their fingerprints on the messiest pieces. And that’s exactly what we saw here. That’s exactly what’s alleged here, that there were people on the ground who were committing acts in furtherance of this conspiracy, in Georgia. But then there were much higher placed people who were alleged to have been also involved in planning these crimes and directing these crimes.

So you see these 19 people indicted, and the first person named in the indictment is Donald John Trump. Right below him is Rudy Giuliani, and you have a number of high-powered lawyers connected to the president. And then you get down the list to some very obscure people.

Like who?

Well, one that really stands out is a woman named Trevian Kutti who has called herself a publicist for the rapper Kanye West. She’s a not very well known person. She’s somebody who is alleged to have traveled to Georgia with the purpose of intimidating a Fulton County Georgia elections worker, right before the certification of the votes in Washington, to try to pressure her to admit that she had committed election fraud, which was all just a total canard. But you see the range. You see us go from Trevian Kutti at the bottom to Donald Trump, about as high toward the top as you can get.

Right. So as with the mafia, the idea is to get the foot soldiers, the political operative on the ground, somebody many of us have never heard of, and work its way all the way up to top lawyers and the former president himself.

Exactly, and even though everyone in this indictment is charged with more than one count of violating more than one Georgia criminal statute, they’re all charged with RICO. They’re all charged with racketeering. It’s a very serious crime in Georgia. It carries potentially 5 to 20 years in prison or a fine, and it’s the kind of penalty that can force people to consider flipping and cooperating with prosecutors. This may be the very beginning of a very drawn-out drama, in which you see some of the people further down the food chain buckling to the pressure and helping prosecutors get the people up the food chain that they probably want more.

I want to pause on that. Should we understand this indictment in its enormous scale, 19 defendants, as being an effort to get perhaps the lowest level people in that list of 19 to cooperate with the DA, to testify against your Rudy Giulianis and your Donald Trumps, is that what this may ultimately be about?

I think prosecutors always want in a conspiracy-style charge like this to see if they can pressure the small fish to get the big fish. We don’t know if it’s going to happen, but it’s something that you definitely see in a big, gnarly case like this.

Got it. So the racketeering framework of this case is clearly what differentiates it from the last big indictment that we all just witnessed against Trump, which was the federal indictment by special counsel Jack Smith of Trump over his efforts to subvert the 2020 election, which feels otherwise similar, except it was about just one person, Donald Trump. This is much, much bigger, and it casts a much, much wider net. Is that right?

That’s absolutely right, and I think it’s really worth thinking about the comparison between the latest Jack Smith case that charges Donald Trump with election interference and the Fulton County case, which does the same under state law. You have the Jack Smith case, it’s a federal case, which charges just one guy, Donald John Trump. It appears to be built to be a case that will be very narrow and very fast.

One guy, try to slam it into the courts as soon as you can. Don’t lard it up with other co-conspirators. Although, maybe down the line, we’ll see that, but right now, it looks like Jack Smith wants to just go bang, bang, bang and make this thing go as fast as he can.

I think for Fani Willis — and I think we discussed this before — how she likes RICO, because it allows jurors to see the whole picture and the whole story. It allows prosecutors to introduce a lot more evidence than in other kinds of trials, and you get this big sprawling story that they can chew on. But there is a potential downside here.

By going so wide and including so many defendants, you could really see this case slowed down, as it moves through the courts. You could also see a lot of confusion in a jury, because you have so many different elements of this scheme laid out. It’s not a simple story, at this point. It’s a very complex story.

So what specific evidence does the district attorney lay out in the indictment to support this sweeping claim of racketeering?

Well, it’s a really remarkable cache of evidence, and it includes everything from tweets from Donald Trump to evidence of false statements made before legislative bodies, which can be a crime in Georgia. It’s a lot of different actions, but you can really see how many different ways the Trump team was trying to make something happen, here in Georgia, when the numbers didn’t add up for their candidate. You had President Trump making phone calls, pressuring phone calls, to Brad Raffensperger, the Georgia secretary of state.

Famously.

Famously, you have, of course, the scheme to seat 16 pro-Trump Republican electors who would vote for Donald Trump and deliver the 16 electoral votes from Georgia to Donald Trump, even though Donald Trump lost. It’s a remarkable story, and you have some really interesting charges related to those efforts. And then you have this really bizarre chapter, which largely went down the day after January 6. Whereby a group of data experts, hired by the conspiracy theorist and Trump-aligned lawyer Sidney Powell and some other pro-Trump people, visited this rural county 200 miles from Atlanta called Coffee County, and they copied all of the very sensitive elections data down there.

Wait. They just walked into an election office and somehow got hold of all the internal election data?

Yes. It was a very pro-Trump county and some election officials in that county let them come in and do what they did. The woman who was the director of elections in the county at the time, who’s charged in this document, had been saying online that somehow the machines didn’t work, and it was raising the possibility that bad things were happening there in Joe Biden’s favor. None of it turned out to be true, but this team came down and copied all this data, and it’s a pretty serious and sensitive breach. And of course, the indictment alleges it constituted a violation of Georgia laws as well.

Richard, based on how you described racketeering, the elements of that evidence that seem to fit that description is that this was activity that involved the guy at the top, Donald Trump, but a tremendous amount of it, in fact, the majority of it, was being conducted by people under the former president, by lower level people, including folks walking into an election office in rural Georgia trying to steal election data. That’s what makes this, in the eyes of the district attorney Fani Willis, racketeering.

Yes. That all these people were committing acts in furtherance of a big conspiracy, and they may not have all known one another. In fact, they didn’t all know one another. Donald Trump probably didn’t know a number of them by name, but in a RICO case, in many cases, it doesn’t matter. They were all working together at a certain period of time and essentially formed a kind of an organization, and they had this kind of corrupt end game. And as a result, everybody gets wrapped up in this one big RICO charge.

Right. Because what they share is a common mission. That common mission is to overturn the election, and that, according to this indictment, was illegal. That makes them all basically part of the same organized criminal unit.

Exactly.

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We’ll be right back.

Richard, you’ve been reporting on this investigation for months. So now that the indictment is actually out, I’m curious, based on your reporting and all the conversations you’ve had with legal experts, whether this case is seen as strong, especially given the racketeering framework, or if it’s seen as risky, given its ambition and breadth, and how experts think about its strengths and weaknesses relative to all the previous indictments against Trump.

Well, the district attorney has tremendous experience with the RICO statute. She hired the leading RICO expert in Georgia to help her with this case. They collaborated on previous RICO cases, some very high profile ones. There’s one specific case with some public school teachers who had been cheating on standardized tests that was very successful, although very controversial.

She knows how to use this statute, and it’s going to be very helpful to her and her team as they go into trial. But the reality is, I know we don’t like to use the word unprecedented at “The New York Times,” but just really go back and try to find the precedent for a local prosecutor who has brought state charges against a former president with a case that reaches into the Justice Department, into the campaign of the presidential candidate, and then far beyond onto these very strange tentacles of an alleged scheme.

Right. It’s a classic legal David versus Goliath. This is a, virtually, until now, unknown local prosecutor taking on the president of the United States.

Yeah, and critics of our justice system will say, well, wait a minute, the prosecutors like Fani Willis have tremendous power, perhaps inordinate power, if you listen to them. So it sets up a really fascinating fight, and it’s just really hard to go back in history and look for anything like it. So I hesitate to say it’s going to be a slam dunk, or it’s a strong case, it’s a weak case. I think we’re all sailing out into waters that we’ve just never been in before.

And another thing to keep in mind about this case is that a president can’t use his pardon power to wiggle out of a state conviction in Georgia. So in some ways, I think sometimes we fall in the trap of thinking a federal charge is really super important. A state charge is just a little bit lower, because the federal government is bigger than a state government or whatever.

This is an interesting case, where it’s a really serious problem for the president. If he gets reelected, he might have the ability to pardon himself, if he’s convicted in federal court. But in Georgia, he just can’t go there. So this could pose a very serious threat to him and his freedom.

Right, because presidents cannot pardon themselves for state-level crimes. Whereas, in theory, they can pardon themselves for federal crimes. And I guess by the same token, when it comes to a federal prosecution, a president can take over the Department of Justice and just get rid of it. You’re saying, I’m guessing that that’s not possible with a local case, because the president has no power over a local district attorney.

Yeah. It’s a really interesting expression of the way our federal system work. That the states run their own justice systems, and it just really limits the powers of what even the president can do.

Right. So if every other case falls away, this case would very likely remain, no matter how long it takes. And as you said earlier, Richard, given how big a case it is, given how many defendants there are, how many delay tactics they all might deploy, it could take a very long time for this to ever reach the trial phase. But once it does, there’s really nothing that former President Trump or future President Trump can do about it.

I think the limitations of the president’s power, when it comes to this case, has got to be a problem that’s looming just like a tremendous dark shadow over President Trump’s consciousness, when he contemplates this case in Georgia.

Richard, what happens next in this case? 19 defendants, do all of them now turn themselves in? Do all of them show up in court together? Are all of them going to be on trial together? That is going to be a very, very crowded courtroom, if it is.

Well, we’re going to see a lot of people roll into Atlanta. We think that a number of them will be booked at the county jail, which is known in and around Atlanta and in a lot of hip-hop lyrics, because we’re in the hip-hop capital of the world, ostensibly, is Rice Street. So a lot of people are going to go to Rice Street to get booked. It is far from Mar-a-Lago in many ways. They’re going to be fingerprinted. They’re going to have their mug shots taken. The Secret Service may intervene and change the way some of this works for President Trump, but the sheriff here has said he expects the president to have his mugshot taken. We expect him to come to court and plead not guilty.

And then after that, before trial, we expect a lot of efforts by President Trump’s attorneys and perhaps other attorneys to try to derail this case and prevent it from going to court at all. So and this is before we get to a drama like a multi-week, multi-month jury selection and then a trial. So we’re really in for the long haul here, potentially. But what Fani Willis said in her news conference tonight is that she wants to try all 19 of these defendants together, and that her plan is to ask that a trial starts within six months.

And if Fani Willis gets that timetable, then her trial will be competing with perhaps occurring in parallel with three other criminal trials involving the former president.

Yeah. It’s a huge, complicated pile up of legal cases. It’s going to be of great interest to us to see how the court systems lay out these various trials. But what we do know is Donald Trump is going to be spending a lot of time in court in the coming months.

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Richard, thank you very much. We appreciate it.

Thanks, Michael.

In a statement on Monday night, Donald Trump’s presidential campaign accused District Attorney Fani Willis of being, quote, “A rabid partisan who chose to charge Trump in the middle of his presidential campaign in order to keep him from winning back the White House.” A few hours later, during a news conference, Willis countered that claim saying, quote, “I make decisions in this office based on the facts and the laws,” adding that, quote, “The law is completely nonpartisan.”

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We’ll be right back.

Here’s what else you need to know today. In a landmark ruling on Monday, a state court in Montana ruled in favor of 16 young people who had sued the state for supporting the fossil fuel industry. The plaintiffs, ranging in age from 5 to 22, argued that Montana’s permissive approach to fossil fuels had violated their rights, because the state’s Constitution guarantees a, quote, “Clean and healthful environment.” The judge agreed, striking down a state law passed earlier this year by Montana’s Republican-controlled legislature that prevented the state from considering the climate impact of new oil, coal, and gas projects. The ruling is a major victory for climate activists who have filed similar lawsuits in several states and against the federal government.

Today’s episode was produced by Rikki Novetsky and Rachelle Bonja, with help from Alexandra Leigh Young. It was edited by Rachel Quester, Patricia Willens, and Michael Benoist, contains original music by Rowan Niemisto and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

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That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.