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Earlier this week, former President Donald Trump was indicted for the fourth time in five months. In this case, a Georgia grand jury indicted Trump and 18 others on racketeering charges for allegedly orchestrating a “criminal enterprise” to reverse his 2020 election loss in the state.
The Georgia indictment, which stems from a years-long investigation by Fulton County District Attorney Fani Willis, differs in key ways from the three criminal indictments that preceded it, notably in its dependence on Racketeer Influenced and Corrupt Organization (RICO) laws.
But the Georgia indictment is also very similar to the federal indictment that came right before it — that is, the one from special counsel Jack Smith charging Trump with conspiring to overturn his 2020 loss nationwide.
And all of that overlap, in turn, raises a tricky question: "Why bring yet another case against Trump in yet another jurisdiction?" as David French of the New York Times recently put it. "Isn’t he going to face a federal trial in Washington, D.C., for the same acts outlined in the Georgia indictment?" When is enough enough?
Why there's debate
There are two dimensions to the debate over whether Willis’s wide-ranging charges could be considered overkill.
The first is legal. Critics of Willis’s indictment — including many who seem to believe that Trump should be convicted for endeavoring to steal the election — wonder about the wisdom and necessity of conducting a sprawling state trial with 19 defendants even though Trump is already being tried in federal court for his role in the scheme.
“Willis is well within her legal rights to bring the case under state law,” the Washington Post’s Ruth Marcus wrote Monday. “Whether that prosecution is advisable, in the wake of federal charges arising out of the same conduct, is a tougher call. … What’s the ‘substantial Georgia interest’ implicated here that has been left ‘demonstrably unvindicated’ [by the federal indictment]?”
The second dimension is political. Previous indictments have only reinforced the bond between Trump and his loyal MAGA base; this one is unlikely to break that pattern. But is there a risk of the “accumulated indictments” becoming a “kind of a white noise for [other] voters,” as Sarah Longwell, an anti-Trump Republican political consultant, recently theorized — and Trump's alleged election crimes losing whatever power they may have once possessed to sway persuadable Americans as a result?
Smith has requested a January start date for Trump’s (much more streamlined) federal election-crimes trial, and the judge in that case has already signaled her interest in a speedy process. So despite Willis’s goal of kicking things off within the next six months, the Georgia case is almost certain to go second; Trump could be convicted — or acquitted — on federal charges before Georgia even gets started. Either way, questions about the need for multiple election-related trials will probably only intensify.
Willis has overreached by relying on RICO
“The fourth indictment of former President Donald Trump reads like an exercise at throwing everything at the jury to see what might stick. … The alleged behavior was rotten, but inflating it into a RICO conspiracy makes the case less credible, not more.” — Editorial board, Wall Street Journal
And there’s a ‘double jeopardy’ problem here too
“The federal indictment sets out conduct in six other states in which Trump and his co-conspirators allegedly sought to overturn the election results. Will he be prosecuted in those states, too? At some point, it becomes unfair — yes, even to Trump — to go state by state. That’s why the federal approach is preferable.” — Ruth Marcus, Washington Post
Not so fast: State law is actually better suited to election crimes than federal law
"The federalist system designed by our Constitution gives the states primary responsibility to conduct and police elections. Ergo, the states have laws that are tailored specifically to election irregularities and attempts to subvert state processes for tabulating and certifying votes. Unlike Smith, Willis can invoke laws that are specifically designed to deal with election-interference conduct of the kind Trump engaged in." — Andrew McCarthy, New York Post
And Georgia’s specific laws will allow Willis to make a 'vastly simpler case' against Trump
“The beating heart of the case is the 22 counts focused on false statements, false documents and forgery, with a particular emphasis on a key statute [that] prohibits false statements and writings on matters ‘within jurisdiction of state or political subdivisions.’ [So] while you might be able to lie to the public in Georgia — or even lie to public officials on matters outside the scope of their duties — when you lie to state officials about important or meaningful facts in matters they directly oversee, you’re going to risk prosecution.” — David French, New York Times
The Georgia case will also act as a backstop if Trump is acquitted in federal court
“A conviction of Trump in a Georgia state court could not be erased by a presidential pardon if Trump were to return to office. In that sense it could constitute an insurance policy against Trump’s abuse of the pardon power.” — Editorial board, Los Angeles Times
Politically, however, the Georgia case won’t change any minds
“It is still historic and meaningful but there’s diminishing marginal utility in the politics, particularly when it’s the same scheme on which Jack Smith indicted him. For voters, at this point you’ve decided whether being indicted is problematic or if you believe this is all being done to undermine his campaign.” — Brendan Buck, an adviser to past Republican House speakers, to New York Times
Except perhaps in Georgia itself, where it could doom Trump’s 2024 campaign
“Strategists … say that Trump needs to win Georgia in November 2024 to return to the White House and that another year of nonstop indictment coverage on local and national news here doesn’t help. ‘It may be more muck on top of the heap elsewhere, but in Georgia it's different,’ a strategist who has worked on recent statewide campaigns here said. ‘The road to the White House goes through Georgia.’” — Garrett Haake, Katherine Doyle, Kristen Welker and Alex Tabet, NBC News