Will Georgia’s Tough-on-Crime Laws Trap Trump Behind Bars Before Trial?

The 19 members of the alleged “criminal enterprise” headed by President Trump will have until August 25 to turn themselves in to Fulton County authorities, but what if their time as free men and women is interrupted well shy of any conviction? The specter of Mr. Trump and others being held without bail was raised by a veteran political scribe, John Heilmann, who took to “Morning Joe” to reflect that “this is the one case where Donald Trump will find it very difficult even to be given bail because of the way that the laws work in Georgia.”Special Counsel Jack Smith has thus far declined to press the point that Mr. Trump should await trial behind bars, a forbearance shared by District Attorney Alvin Bragg. Yet a federal judge, Beryl Howell, ruled that the 45th president, possibly the best known man in the world, is a “flight risk.” The government has so far declined to pursue that line of argument. An inkling that Georgia could be different came even before Mr. Trump’s indictment, when the sheriff of Fulton County, Patrick Labat, warned that “it doesn’t matter your status, we’ll have a mugshot ready for you.” The former president will be required to appear before a judge within 24 hours of undergoing “intake.” Mr. Trump has thus far been spared these formalities. From there, Mr. Trump’s road will not get any easier. Georgia law, like the federal code, mandates that a “court shall be authorized to release a person on bail if the court finds that the person” does not pose a flight risk, a danger to the community, or is unlikely to commit another felony before trial. So far, so standard. The Peach Tree State, though, adds another provision. Bail can be withheld if the defendant poses a “significant risk of intimidating witnesses or otherwise obstructing the administration of justice.” This could pose difficulties for Mr. Trump, who in the hours after the indictment was handed up called Ms. Willis “an out of control and very corrupt District Attorney who campaigned and raised money on, ‘I will get Trump.’”More serious for Mr. Trump could be a message he posted to Truth Social on Monday, immediately before the indictment. The former president opined, “I am reading reports that failed former Lt. Governor of Georgia, Jeff Duncan, will be testifying before the Fulton County Grand Jury. He shouldn’t.” Prosecutors could press the point that this signals both obstruction and intimidation. Such rhetoric could pose graver threats to Mr. Trump than even being denied bail. In Georgia, attempts to influence a witness can amount to a felony punishable by up to five years in jail. Threatening a witness is a crime of even greater severity, carrying a penalty of up to 20 years behind bars. These charges could be added to the 13 Mr. Trump already faces via a superseding indictment. The superior court judge assigned to oversee the case, Scott MacAfee — a newcomer to the bench — could look north for guidance. In the District of Columbia, Judge Tanya Chutkan, who is presiding over Mr. Trump’s January 6 case, warned that “the more a party makes inflammatory statements” the “greater the urgency will be that we proceed to trial quickly.”Ms. Willis wants a quick trial, but it is likely that Mr. Trump will follow his former chief of staff — and co-defendant — Mark Meadows in moving to remove his case to federal court. Federal law allows this when the case involves “any act” by “any officer of the United States” taken “under color of such office.”Mr. Trump was unsuccessful when he tried this maneuver at New York. That prosecution centers on alleged hush money payments to a porn star, Stormy Daniels. The case being levied in Georgia, though, has much more likelihood of involvement with official acts of the United States because it involves the counting of votes. One motivation for eyeing federal court could be the political complexion of the jury pool that will decide Mr. Trump’s fate. A state trial would draw jurors exclusively from Fulton County, where President Biden garnered more than 70 percent of the vote. A federal pool would comprise the Northern District of Georgia, a more diverse region that includes Cherokee County, where President Biden failed to crack 30 percent support.The constitutional questions posed by removal could be destined for appellate review, and even Supreme Court consideration. Mr. Meadows’s request invoked the Supremacy Clause, and Mr. Trump has already floated a defense on Truth Social based on the Take Care Clause that requires the president to take care that the laws “be faithfully executed.”

Will Georgia’s Tough-on-Crime Laws Trap Trump Behind Bars Before Trial?

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