The Weekend Wrap: October 1, 2023

GA defendants cite Sidebars in a RICO challenge - and the first flip

Welcome to the Weekend Wrap! Here are last week’s white collar highlights:

Trump Prosecutions

Georgia State Case - January 6 Allegations

RICO – There was one development in the Georgia case last week that I’m particularly interested in. Former Trump campaign attorney Ken Chesebro, one of the two defendants currently scheduled to begin trial on October 23, filed a motion challenging the lead charge, RICO conspiracy. He argues that the indictment fails to meet the legal requirement of continuity – the rule that requires (for federal RICO, at least) that a “pattern of racketeering activity” go on for some substantial period of time, not just a few weeks or months. Because the primary alleged criminal activity in this case took place over only about two months, between the election and January 6, he argues the RICO charge is legally flawed and cannot stand.

This is the argument I made a few weeks ago in this Sidebars post. In his motion, Chesebro cites my post and relies heavily upon it.

Problems with the Georgia RICO Charge

The continuity requirement comes from a Supreme Court case interpreting federal RICO. It’s not clear that the Georgia courts will apply the same requirement to their state RICO statute, although there are good reasons why they should. The issue is unsettled, but Georgia courts do routinely look to federal RICO decisions when interpreting their own law.

Sidney Powell, the other defendant currently set for trial on October 23, and former president Trump both filed motions joining in Chesebro’s challenge. That means we should see a ruling from the judge on this question within the next couple of weeks. If the judge were to agree with Chesebro and strike the RICO charge, that would mean the charge fails as to all nineteen defendants — the same reasoning applies to all of them.

Even without RICO there would many charges remaining in the Georgia case, including twelve other charges against Trump. But without the RICO conspiracy the case might need to be broken down into several smaller cases – which may be inevitable anyway.

I know some readers feel conflicted when I identify potential flaws in the Trump prosecutions. But my arguments are about whether the criminal law is being used properly. As a former prosecutor, I know those arguments can't vary based on politics. We can't endorse a potentially improper use of a criminal statute because we don't approve of the defendants. Tomorrow that same law might be used against us or someone we love or admire. 

One of the gravest dangers posed by Trump is that he tried to use the justice system as a political weapon and is openly threatening to do so again if re-elected. But the essence of the rule of law is that justice is applied apolitically and even-handedly to all -- even to those who would seek to subvert it.

There are serious legal questions about the way Georgia prosecutors are using RICO. Now a judge, perhaps ultimately the Georgia Supreme Court, will address those questions. In the long run, that's a good thing.

Georgia Defendant Scott Hall

First Guilty Plea - The other big news in Georgia this week was the first guilty plea/flip from one of the nineteen defendants. Scott Hall, a former bail bondsman who was charged primarily in connection with the unauthorized tampering with voting machines in Coffee County, pleaded guilty to five misdemeanor counts. He could be just the first domino to fall.