Anthony Michael Kreis

Trump would have to serve 5 years in prison before he's eligible for a pardon in Georgia: legal expert


Anthony Michael Kreis, Georgia State University

An Atlanta, Georgia, grand jury indicted former President Donald Trump on Aug. 14, 2023, charging him with racketeering and 12 other felonies related to his alleged attempts to overturn his 2020 election defeat in the state.

Eighteen of Trump’s allies and associates, including former Trump attorney Rudolph Giuliani and former White House chief of staff Mark Meadows, were also indicted for racketeering and other felony charges for their alleged involvement in the scheme.

This marks Trump’s fourth indictment in five months – and the second to come from his efforts to undo the election results that awarded the presidency to Joe Biden. Fani Willis, the district attorney of Fulton County, Georgia, started investigating Trump’s involvement in this alleged scheme, as well as that of Trump’s colleagues, in February 2021.

In January 2021, one month before the investigation started, Trump placed a phone call to Georgia Secretary of State Brad Raffensperger and pressed him to “find” enough votes to overturn Biden’s win.

The Conversation U.S. spoke with Anthony Michael Kreis, a scholar of Georgia’s election laws, to understand the significance of the charges laid out in the 98-page indictment. Here are five key points to understand about the precise nature of the charges and why racketeering is at the center of them.

Two black cars that say 'sheriff' on it block off a street in front of a walk over that says Fulton County and nearby government buildings.

Police officers block off a street in front of the Fulton County Courthouse on August 14, 2023, in Atlanta.

Joe Raedle/Getty Images

1. Racketeering is different from conspiracy charges

With a Racketeer Influenced and Corrupt Organizations, or RICO, charge, Willis presents a narrative that there were a large number of people involved in this case, but that they didn’t necessarily sit down at some point and over cocktails and say, “We are going to engage in this criminal act,” which would be a traditional conspiracy case. She is painting this picture of people winking and nodding and working toward this end goal of overthrowing the election, but without some kind of expressed agreement.

The Georgia RICO law allows her to rope in a lot of people who allegedly were involved with this kind of approach.

To be able to bring conspiracy charges, she would have to have an expressed agreement and a concrete act in furtherance of that conspiracy. And here there really wasn’t quite a plan – it is essentially a loose organization of people who are all up to no good.

2. Georgia – and Willis – have used racketeering charges before

Traditionally in Georgia, RICO has been used to prosecute people engaged in very violent kinds of activity – for street gangs and the Mafia, in particular. It has also been used in other contexts.

The most notable is the Atlanta public school cheating prosecution in 2015, when a number of educators were charged with manipulating student test scores. They wanted to make the public schools look better for various reasons. But they didn’t all know exactly what the other people were doing.

Willis was the assistant district attorney prosecuting that racketeering case. It’s a tool that she likes to use. And it is a tool that can be really hard for defendants to defend against. Eleven of the 12 defendants were convicted of racketeering in 2015 and received various sentences, including up to 20 years in prison.

Fanni Willis looks straight ahead at the camera and sits at a wooden table.

Fanni Willis, the district attorney of Fulton County, Georgia, is seen inside her office in September 2022.

David Walter Banks

3. Georgia law poses particular risks to Trump

Georgia’s RICO law is much more expansive than the federal version of the law. It allows for a lot more different kinds of conduct to be covered. That makes it very easy to sweep people into one criminal enterprise and it’s a favorite tool for prosecutors.

And the punishments for violating the state’s RICO are harsh. There is a minimum five-year sentence for offenders, and there can be a lengthy prison sentence for any co-defendants, as well.

But it also introduces a new dynamic, which Trump might not be used to. There is a big incentive for people who are listed as co-defendants to cooperate with the state and to provide evidence, in order to escape punishment and secure favorable deals.

This is probably the biggest risk to Trump, and the likelihood that he would be convicted in Fulton County rests with this. The other people involved in this are not all household names, and presumably have families and friends and don’t want to go to prison. They may well find themselves in a position to want to give evidence against Trump.

4. It’s ultimately about election law

It looks like Georgia election law is taking a slight backseat to some of these other possible charges – of false swearing, giving false statements – which is not quite an election conspiracy, or election interference, which are distinct charges under Georgia law.

The important lesson here is that Willis is essentially bringing an election conspiracy charge under RICO, so it is an election law violation by another name.

What she is vindicating is not only the rights of Georgians to vote and have their votes counted. Willis is also preserving the integrity of the election system – to not have poll workers harassed, to not have people making false statements about the elections in courts of law, and to not have people tamper with an election.

5. This could influence future key elections

Georgia has some serious contested elections ahead in 2024 and 2026. And people need to have faith in the system, the process, as well as in the institutions and the people. Fani Willis has a very important goal here – which is to expose the wrongs for what they were, to show people what happened here and to what degree it was criminal, if she can prove that. It’s also about reassuring people that if others engage in this kind of conduct, they will be penalized.The Conversation

Anthony Michael Kreis, Assistant professor of law, Georgia State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

New signs in Georgia expose our ongoing democratic decay

Make no mistake. Democracy is under assault in the United States. The most recent evidence of this comes from Georgia, where Republican Governor Brian Kemp signed legislation Friday that will inordinately harm Georgia voters. The new state law:

  • shortens the time voters can request absentee ballots
  • adds voter ID requirements to absentee ballot requests
  • bans officials from sending unsolicited absentee ballot applications
  • limits access to ballot drop boxes
  • prohibits mobile voting buses
  • enables the state to take power away from local elections officials
  • reduces early voting for runoffs
  • criminalizes the distribution of food or drink to voters without exceptions.

Supporters claim the new law is about restoring faith in elections. Nonsense. Every justification offered to cast it as a harmless measure sticks in the throat like a hair on a biscuit. The law's true purpose is to suppress voter turnout and do so in ways not despite the disparate harms it will impose on voters of color but because of them.

Georgia's general elections were a democratic success in 2020. Georgians turned out in droves to cast ballots. As the state's elections officials reiterated for weeks, voters made their voices heard in a secure, transparent and fair process, under rules established by Republicans. But in the wake of two elections that upended the status quo, the first rejecting the GOP presidential nominee, the second sending a Jewish man and a Black man to the United States Senate, suddenly the rules were no longer acceptable. For no rational reason, the results were deemed suspect. And then, the solutions in search of problems began to take the form of legislative proposals.

The problem was never election insecurity. The problem was the voters themselves. After years of realignment in the growing and increasingly diverse Atlanta suburbs, and of grassroots organizers' efforts to register new voters, a new multiracial coalition emerged as a serious contender for power in the "Empire State of the South."

This demographic and partisan shift created conditions ripe for Black voting power to tip the scales. This renewed strength could not go unanswered, though. State GOP legislators labored to entrench their own power by undermining the ease with which voters could access the ballot box. Rather than adjust their policies to appeal to voters, legislators worked to adjust the electorate itself. A healthy democracy? Not so much.

The struggle that's now endemic in the United States is the delegitimization of multiracial democracy under the banner of restoring confidence in elections. The fear of political power and changing national identity is a recurring theme in American history. Indeed, the frantic responses to last year's surprise elections from some corners feel reminiscent of 19th-century Redemption politics in which white-power Southerners used baseless allegations of fraud and corruption to wrestle the franchise away from Black voters. However, while racist politics has been a constant threat to American democracy, our institutions have been acutely imperiled in recent years. The Georgia elections law is just one chapter in a longer story of democratic decay.

For the past decade, white grievance and nativist politics have been especially pernicious. It began with birtherism, which was a movement grounded in questioning the legitimacy of Barack Obama's presidency because of a perception of "otherness." In places like North Carolina and Wisconsin, GOP legislators overrode the will of multiracial coalitions that ousted Republicans from statewide office. There, Republicans disregarded defeat and stripped powers from incoming Democratic governors. In light of calls for electing presidents by popular vote, support for the Electoral College from the right galvanized around the idea that it gave a voice to "real Americans," which boiled down to equating good citizenship with rural whiteness.

Opponents to statehood for Washington, D.C., have invoked the same idea to justify unrepresentative government. Several states enacted laws constraining local governments from removing Confederate idols from public property, directly gutting Black political power. Donald Trump's trafficking in conspiracy theories and evidence-free allegations of fraud in diverse cities like Atlanta, Philadelphia and Detroit was just the most recent manifestation of this long-brewing anti-democratic movement. Some people were deemed more worthy heirs to the American project than others. Democracy by "others" was not entitled to respect because it was innately suspicious.

The danger of letting anti-democratic impulses continue to fester is all too real. That's the lesson of Reconstruction's first failures. That's the lesson we should draw from the January 6 insurrection. Those impulses will only grow more virulent if unchecked. The time is ripe for a great democratic awakening in the United States. Congress must enact federal legislation to safeguard access to the ballot box. Our government must end the disenfranchisement of American citizens in Washington, D.C., and Puerto Rico. The courts must seriously reckon with the reality of how corrosive racist politics undergird so many legislative pushes to change election laws. Voting rights organizations must redouble their efforts to register new voters and improve turnout. We have an opportunity for a Third Reconstruction in which America makes good on the unfulfilled promise of universal suffrage and a thriving multiracial democracy.

Let's not waste it.

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