Fani Willis Appeals To Keep Her Indictment From Shrinking, but Will Trump Request a RICO Review?

The district attorney appears to be on her back foot with respect to both her place on the case and the integrity of her indictment.

Photo by Alex Slitz-Pool/Getty Images
Fulton County District Attorney Fani Willis looks on during a hearing at the Fulton County Courthouse on March 1, 2024, at Atlanta. Photo by Alex Slitz-Pool/Getty Images

District Attorney Fani Willis’s appeal to reinstate six charges against President Trump and his co-defendants that were dismissed on account of vagueness could signal a new aggressiveness from the pugilistic prosecutor fighting to keep her job and to prevent her indictment from melting like a scoop of ice cream on an Atlanta sidewalk in summer. 

The request to the Georgia Court of Appeals — it is just a notice, with the promise of arguments to come — is the first time in this case that Ms. Willis has sought to reverse a ruling of the trial court judge, Scott McAfee. It could indicate a desire to regain momentum after a series of setbacks, and preview an even more consequential challenge ahead from Mr. Trump — of the racketeering charge at the case’s center.    

The appeal arrives at the appellate court while its judges consider whether to disqualify the district attorney from her racketeering case. Judge McAfee ruled that she or her boyfriend and special prosecutor, Nathan Wade, had to step aside because their relationship created a “significant appearance of impropriety.” He also found her rhetoric about the case — accusing the defendants of “playing the race card” — to be “legally improper.” Mr. Wade resigned. She, an elected official, remains.       

Mr. Trump has appealed with gusto, and notched victories in the process. The six charges at issue here — three of them are against Mr. Trump — were dismissed by Judge McAfee for vagueness. They relate to accusations that the defendants solicited public officials to break the law by violating their oaths of office. In finding that too nebulous, the judge ruled that Ms. Willis violated the constitutional mandate to deliver fair notice to defendants. 

Mr. Trump has also appealed two more of his 13 charges. He argues that they are best heard in federal court. Those two alleged crimes relate to a conspiracy to file, and the actual the filing of, false documents in a federal tribunal, the United States District Court for the Northern District of Georgia. The Supremacy Clause guarantees federal primacy when federal and state law clash.

Judge McAfee has not yet ruled on the challenge to those final two, but if he finds that they lie outside of the jurisdiction of the district attorney, five of those 13 charges against Mr. Trump will have been struck. Such a “slimming down” of the original indictment — call it litigation Ozempic — will likely amplify criticism that Ms. Willis has overcharged, both in the number of defendants and the 41 crimes she alleges that they committed.

The 45th president, though, has not yet challenged the central charge — the state version of the Racketeer Influenced and Corrupt Organizations Act. Ms. Willis has used that RICO statute, which carries a minimum prison sentence of one year, against public school teachers and the rapper Young Thug. In a press conference in 2022, she called it a “tool that allows a prosecutor’s office and law enforcement to tell the whole story.”

Any effort to challenge the racketeering rap would have to contend with Supreme Court precedent that has ruled that the federal version, first passed into law to combat organized crime, is constitutional. The Department of Justice, though, warns its prosecutors that higher-ups will “not approve ‘imaginative’ prosecutions under RICO,” and that its use requires “particularly careful and reasoned application.”

The mystery of why Mr. Trump has not yet filed a motion to dismiss with respect to the racketeering charge is deepened by the guilty pleas of four of his co-defendants, none of which involved admitting to a racketeering violation, the case’s linchpin. Mr. Trump’s attorneys could reckon that a diminished indictment would eventually dilute that charge.   

A different theory, one tied to the possibility of Ms. Willis’s disqualification, is offered to the Sun by an attorney, Harvey Silverglate, for one of the defendants, John Eastman. Mr. Silverglate reckons that if Ms. Willis is disqualified from the case, a “new set of eyes would procure a new and simpler conspiracy indictment — not RICO.” He adds that he is confident his client “would win a mere conspiracy trial. 

“In RICO cases,” Mr. Silverglate adds, “everyone including the butler gets convicted.”

The New York Sun

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