Trump Indictment Four: Too much
by Byron York,
Chief Political Correspondent
August 15, 2023 05:15 PM
TRUMP INDICTMENT FOUR: TOO MUCH. The MSNBC coverage of Trump Indictment Four, running late Monday night into early Tuesday morning, had an odd undertone. The network's stars had gathered for the Big Event, but something seemed just a little wrong. They seemed like children who had gotten much more than they asked for for Christmas: a little overwhelmed and confused. They were happy, of course, but worried it might be too much.
At about the same time, a liberal Washington Post columnist was expressing misgivings about Fulton County District Attorney Fani Willis's indictment alleging a vast conspiracy to overturn the 2020 election. Willis is "well within her legal rights to bring the case under state law,” Ruth Marcus wrote. "Whether that prosecution is advisable, in the wake of federal charges arising out of the same conduct, is a tougher question — one about which I have misgivings."
The headline of Marcus's column was "Is Georgia's case against Trump one case too many?" Marcus certainly approves of indicting former President Donald Trump, even of having multiple indictments as insurance against an unexpected hung jury or acquittal — can't risk Trump getting off! But after the Georgia case, she confessed to a certain "queasiness" and could not see a limiting principle. "There is a concern about piling on here," she wrote. "Why stop at Georgia? The federal indictment sets out conduct in six other states in which Trump and his co-conspirators allegedly sought to overturn the election results. Will he be prosecuted in those states too? At some point, it becomes unfair — yes, even to Trump, to go state by state."
The Georgia indictment appears designed to please hardcore Trump antagonists who believe the other prosecutors, Alvin Bragg in Manhattan and Jack Smith with the Justice Department, have gone too easy on the former president. Willis has thrown everything she can think of at Trump, who is charged with 13 felony counts. His 18 co-defendants, among them Rudy Giuliani, Sidney Powell, Mark Meadows, John Eastman, and Jeffrey Clark, are charged with dozens more. There are 30 unindicted co-conspirators. Even though Willis is the district attorney of one county in Georgia, she has alleged a massive, nationwide conspiracy under the direction of the president of the United States.
Perhaps the newsiest thing about the indictment is that it relies on Georgia's RICO statute, listing 161 "overt acts in furtherance of the conspiracy." The counts vary by defendant, but each person faces the main RICO charge, which carries with it a five-year mandatory sentence.
Many of the "overt acts in furtherance of the conspiracy" are everyday events that are not illegal. But they must ultimately lead to an illegal act. And that is where the Georgia indictment is likely to cause controversy, particularly in one area — the charges surrounding what prosecutors call the "fake electors" scheme.
Look at one person charged in connection with that matter: David Shafer, who at the time of the 2020 election was head of the state Republican Party. The following is adapted from a newsletter I wrote in January 2022, when criminal charges for this incident seemed remote at best:
In the days and weeks after Nov. 3, 2020, Trump filed a lot of election lawsuits. Nearly all of them failed, some immediately and some over time. Among the lawsuits Trump filed was one challenging the results of the presidential election in Georgia.
Dec. 14, 2020, was an important day in the process. That was the day the Electoral College was required by law to meet in the states and approve slates of electors. Those would then be sent to Washington, where Congress would certify them on Jan. 6, 2021. On Dec. 14, in the states President Joe Biden won, including Georgia, electors for Biden met to formalize their votes.
But at that time, there was still a Trump lawsuit pending in Georgia. Some Trump supporters' thinking went like this: The election is not finally settled. What if Trump were to win the suit and a judge were to throw out Biden's victory? You might view this as a fantasy — indeed, it was — but in some cases, Trump supporters thought they had a strong legal case that would prevail if only a judge would hear it. In the event that a court threw out Biden's victory, Trump would need a slate of electors to cast electoral votes for him. And by law, the electors had to have voted on Dec. 14. If Trump won the case and a state's results were thrown out and Trump had no electors, then the whole election challenge would be a waste.
So in Georgia, as well as a few other states, at the urging of lawyers working in tandem with the Trump campaign, Trump supporters in Georgia decided to choose electors on Dec. 14 on a contingency basis. That is, the electors would be selected, and if, at a later date, Trump prevailed in court and Biden's electors were disqualified, the Trump electors would be presented to Congress on Jan. 6. There was no realistic chance of that happening, but many of the Trump supporters were not ready to give up.
Shafer publicly announced the Republicans' intention. He invited the press to cover the meeting at which "electors" were chosen. He tweeted about it when it happened. There were news accounts of it. "We were told by the lawyers that if the Republican nominees for the Electoral College did not meet on Dec. 14 and cast their votes, then Trump's lawsuit would be mooted because there would be no remedy available to him if he prevailed," Shafer told me in January 2022. "So we met to preserve his remedies if he prevailed."
Shafer's group met in the Georgia State Capitol in Atlanta, the same day the Biden electors were meeting elsewhere in the building. The GOP had invited reporters to come. Some did, from both local and national outlets. You can read this account of the meeting — "As electoral college formalizes Biden's win, Trump backers hold their own vote" — in the Washington Post.
Just to make sure everyone knew what was happening, Shafer posted what had been done within an hour after the meeting's conclusion. "Because the president's lawsuit contesting the Georgia election is still pending, the Republican nominees for presidential elector met today at noon in the State Capitol and cast their votes for president and vice president," Shafer wrote. "Had we not met today and cast our votes, the president's pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law." Shafer did not claim that the Trump "electors" chosen that day were the real Georgia presidential electors but that they would be ready to step in should Trump win his election lawsuit and the results be overturned.
So that is what David Shafer did. And for his efforts he is now charged with:
1) Violation of the Georgia Racketeer Influenced and Corrupt Organizations Act
2) Impersonating a Public Officer
3) Forgery in the First Degree
4) False Statements and Writings
5) Criminal Attempt to Commit Filing False Documents
6) Three additional counts of forgery and false statements
In the months leading up to the indictment, Shafer's lawyers repeatedly asked prosecutors for a meeting so they could make the case for his innocence. Willis's prosecutors did not grant them a meeting. Shafer then sent long letters outlining his case. Here is part of one letter from March 2023:
Mr. Shafer and the other Republican contingent presidential electors acted with complete transparency. Members of the press attended, observed, recorded and reported on their meeting. In addition to the live television news coverage, WSB-TV's Richard Elliott live tweeted a photograph of the contingent electors taken while the meeting was in progress; Greg Bluestein of The Atlanta Journal Constitution re-tweeted Mr. Elliott's photograph and tweeted [another] photograph of fellow contingent elector Brad Carver casting his vote from inside the room during the meeting; and Jeff Amy and Ben Gray of the Associated Press attended the meeting and took [another] photograph, which has been republished by multiple other media outlets. [Shafer included the photos in his letter.]
The news coverage and Mr. Shafer's tweets (and other contemporaneous evidence) make plain that the Republican electors' meeting was public and that they cast contingent votes on the advice of counsel to preserve a legal remedy and protect the right of Georgia to have its electoral votes counted in the event that the then-pending election contest was adjudicated in President Trump's favor. They made their lawful intent in doing so explicit and unmistakable at the time.
Shafer and the others did not claim to be the genuine electors. They explained at the time that the document they signed was a provisional slate. They did so on the advice of lawyers. They told the public precisely what they were doing. And now, Willis says that is a RICO violation, forgery, false statements, and impersonating a public officer.
Of course, the GOP cause was hopeless, and Shafer should have known it. Trump was not going to win the lawsuit. The hoped-for contingency was never going to happen. But for whatever reason — hope, belief in the cause, pressure from GOP voters, whatever — Shafer signed the slates. It was a useless effort, but it was not a crime.
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