Bookman: Trump, ‘Cop City’ RICO cases show danger of such laws
Georgia’s wide-ranging version of an anti-racketeering act, or RICO, puts a powerful weapon in the hands of prosecutors.
And like any powerful weapon, it can be used for good, or for ill. The best safeguards against its abuse must be judges and juries, and both will come into play in the two major RICO-based prosecutions now drawing national attention.
The first, of course, is the RICO case filed by Fulton County District Attorney Fani Willis against Donald Trump and his allies, who plotted through fraud, deceit and intimidation to overturn the verdict of Georgia voters in 2020. In many ways, this sprawling, multi-pronged case is a classic example of the conspiracies that RICO laws are designed to unravel.
But again, it also illustrates the dangers of such laws. In prosecuting a conspiracy, how far beyond the central core of conspirators can and should the law reach? Should it reach those who shared a common goal with the plotters, and perhaps assisted it in some way, but lacked insight into its criminality? What are the outer boundaries of criminal responsibility in such cases?
It’s telling that a special grand jury met for seven months, interviewed 75 witnesses, and recommended that Willis indict 39 alleged co-conspirators, including two former U.S. senators and a sitting U.S. senator from South Carolina. That’s a very broad reach. In the end, Willis wisely narrowed her reach, filing charges against 19, one of them a former president but none of them U.S. senators.
However, I’m still uncertain of the charges that Willis filed against three Republican “false electors” in the Trump RICO case. Yes, those supposed electors played a central role in the criminal conspiracy to overthrow the election. Their bogus claim to be Georgia’s “duly elected and qualified electors” was central to the cockamamie coup concocted by Trump to void Georgia’s election results.
However, did those electors understand that their claims would be used that way, or were they duped into it by Trump’s gang of nutcases and opportunists?
Take David Shafer, the former chair of the Georgia Republican Party and himself a “fake elector.” He had been – and remains — adamant in his belief that the election was somehow stolen, even though the “evidence” that he has offered is disproved nonsense on par with arguments that the Earth is flat. It makes him sound foolish, but justice requires that a distinction be drawn between acting a fool and behaving as a criminal.
Initially, the Trump campaign justified the creation of false electors by claiming they were needed “just in case” they succeeded in court challenges, but we now know that to be a ruse. Emails, court documents and congressional testimony tell us that by early December of 2020, Trump’s inner circle was already plotting to substitute those fake electors for those officially certified by the state, hoping to enlist Vice President Pence as their instrument.
Did any of Georgia’s fake electors know about that aspect of the plot when they met to appoint themselves? If so, then yes, they were complicit in the conspiracy.
Meshawn Maddock, Shafer’s counterpart in Michigan, apparently did know. In a recently uncovered radio interview that was conducted back in December 2020, Maddock bragged that she had been let in on the plot by Trump attorneys. The idea, she explained, was to “send in dueling electors” to Washington on Jan. 6, and “it’ll be before, uh, Mike Pence and Congress” to choose whether the actual or fake electors would be accepted.
That sounds to me like an informed, willing participant. Not surprisingly, Maddock and 15 other Michigan fake electors now face eight state felony charges.
The second RICO case here in Georgia involves sometimes violent protests against a controversial public-safety training facility in Atlanta. The prosecution is being handled by Georgia Attorney General Chris Carr, not by local prosecutors. Indeed, back in June, DeKalb County District Attorney Sherry Boston announced that she would stop cooperating with Carr’s office in prosecuting such cases.
“It is clear to both myself and to the attorney general that we have fundamentally different prosecution philosophies,” Boston said at the time.
She has valid grounds for concern.
There’s no question that some opponents of the so-called “Cop City” project have committed property destruction and violence in their attempt to stop it. There’s also no dispute that anybody who engages in violence in an effort to influence a political dispute, or who knowingly aided in that violence, ought to be prosecuted and jailed.
It’s the same for the left and the right, for anyone who threw Molotov cocktails at Atlanta police or anyone who assaulted the Capitol Police. If you resort to violence or threats of violence against a democratically elected government, then you deserve the consequences.
However, Carr’s approach has been much more aggressive than that, dragging in 61 alleged RICO co-conspirators in the Cop City case and essentially charging all of them with involvement with violence that was probably perpetrated by a relative handful. The indictment reads not as a prosecution against individuals but as an indictment against the entire movement that is opposing the training center, blurring if not erasing the distinction between those who protest peacefully and those who do so violently.
That seems to be at least part of the reason the DeKalb district attorney ceased participating in Cop City prosecutions. “There’s absolutely been destruction and violence, but how you approach all of these cases needs to be approached individually — every case, individually,” Boston said in June. That is not Carr’s approach.
The goal of the Trump conspiracy was to overthrow a legitimate election. The goal of the “Stop Cop City” movement is to halt construction of a law-enforcement training facility. The first goal is inherently criminal, even traitorous. Whatever you think of the merits of the training facility, it’s perfectly legitimate to oppose its construction. It becomes criminal only when you use violence or intimidation to achieve success.
Furthermore, many who oppose the police training facility do so because they allege that law enforcement has too often indulged in over-aggressive, heavy-handed policing and abuse of power to squelch dissent. If that’s your opponents’ argument, it’s not a great look to fight back by … engaging in over-aggressive policing and abusing power to squelch dissent. Yet that’s often the course that state and local officials seemed to have taken in this mess. They have not been transparent, they have not been honest or consistent, and sometimes they have not played by the rules they claim to be enforcing.
Again, judges and juries will determine whether the Trump and Cop City cases are legitimate RICO prosecutions or politically motivated prosecutorial overreach. But of the two, the cases brought by Carr seem far more likely to fall apart under close scrutiny.