Not So Peachy: Trump’s Georgia Indictment

>> Tom Church: This is The Libertarian podcast from the Hoover Institution. Today we're discussing the indictment of former President Trump in Georgia. I'm your host, Tom Church. And the libertarian is Professor Richard Epstein. Richard is the Peter and Kiersten Bedford senior fellow, here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU, and he's a senior lecturer at the University of Chicago.

Richard, I don't know, how we're gonna handle a case with 19 codefendants and 41 separate counts, but let's give it a shot. Now, as you know, Fulton County District Attorney Fannie Willis charged Donald Trump and others with dozens of crimes, under Georgia state law. And the charges range from solicitation of violation of oath of public, oath by a public officer, to making false statements and writings, to the violation of the Georgia RICO act.

Now, this case, I think, has some material differences with the federal case brought by Jack Smith, namely, again, it's under Georgia's version of RICO. In fact, I wanna start there. Tell me, Richard, before we get into the various parts of this case, how is Georgia's RICO law gonna look from a federal RICO case?

>> Richard Epstein: Well, you want the honest answer?

>> Tom Church: Sure.

>> Richard Epstein: Nobody's quite sure. Everybody knows that it's somewhat broader, but nobody knows how much broader, because she has pushed this thing to a limit which has never been pushed before. And there are many different interpretations of the way in which the federal law is there.

But the other thing is, nobody even knows precisely how it is that the RICO statute deals in terms of what's going on. Relative to a conspiracy statute, where you have to have predicate offenses in order to show something. So, I went back to the world's most learned source, Wikipedia, to get the one sentence summary, which only confirmed that I don't know anything because there's nothing here very easy to learn.

It says, what's the difference? It says, this is because RICO conspiracy is not a conspiracy to commit the alleged predicate acts, of which there are many, many under the statute, gambling, murder, kidnapping, and so forth. Rather, a RICO conspiracy offense, is a conspiracy to participate in the affairs of the enterprise, through a pattern of racketeering activity, right?

So, what is the difference between trying to commit predicate acts and appear in the enterprise? Well, we don't have a really good definition of an enterprise, and it turns out that we know that it's broader. But if you ask somebody to give you a set of allegations that would only be actionable under the RICO statute.

But could not be brought under a droid, pleading under a conspiracy theory, one would be very hard pressed to find them. And so, what you then start to do is to say, well, is there other some other kinda collateral advantage that's going here? And it turns out, at least according to my sources, that in a RICO case, it turns out that the jurisdiction is broader.

So, you could get events outside the local county and bring them in, which is a tangible difference when you're trying to spread the net as wide as you can. And this means if somebody tries to tamper with a ballot machine in Coffey county, that could be folded into part of this particular conspiracy.

But what she doesn't do is she doesn't define the conspiracy. She only says, there is one. I would assume that the appropriate definition would be, a conspiracy an enterprise. Which is designed to secure, the reelection of Donald Trump by getting the Georgia legislature to flip the particular outcomes, of the count that had taken place within the state.

And that this would probably begin on election day and would certainly end only after all the ugly confrontations that started to place. But let me just read something else to you, cuz, I mean, I'm generally puzzled by this myself. Is when you look at this, it's quite clear why it is that mafia kinds of arrangements and shakedown artists are covered.

But how does this deal with this? So, you look at the three parts of the definition or the four parts. Part number one says, the defendant either invested the proceeds of the pattern of racketeering into the enterprise. So this means what happens is somebody gave you a share of the mafia take, and you put it back into the business instead of making a distribution of it.

There is no set of proceeds in any way, shape, or form that are even relevant to this particular case. And then it says, the defendants acquired or maintained or control of an interest in the enterprise. Well, if you have to have an interest in the enterprise in order for it to be an enterprise, that kind of suggests you're talking about partnerships or joint ventures of one sort or another.

And it's very difficult to describe these ragtag individuals, each doing their separate things, as knowing that they're part of any particular enterprise. Ask them to say, well, now I'm a part of the enterprise, because Miss Fannie Willis has said, I'm part of an enterprise, but otherwise, I don't know what that means.

And so, the third feature is, participated in the affairs of the enterprise. That can mean anything or nothing. And then the last part is, you conspire to do one, two, or three. Well, it turns out that this is a very inappropriate statute, and you don't know what is holding it together.

And what you cannot figure is the following. She's got all these counts, she's got all these people. If some of the counts, so some of the people get out, what does it do? Is there still an enterprise, or is there not an enterprise? And so, what's happening is she wants to have a trial in six months, when nobody's even quite sure exactly how this case stands up.

It's a very weird complaint. There's nothing substantive about the complaint. What it is, is it's just showing all of these overt acts in pursuance of this particular conspiracy, in order to set up. When we really do go after these guys, what happens is we could get each of them for everything that everybody else in that conspiracy has done.

And even that's difficult, because one of the problems, Tom, is an enterprise a big thing, or can an enterprise be comprised of two enterprises? And so, there's always the question, is the one enterprise, two enterprise? And this often arises, by the way, even in the law of conspiracy, something is going on.

And you have one people who works with two separate groups, but nobody else in the two separate groups work with anybody in the other separate group. Does that one guy bring these two groups together into one giant conspiracy, so everything done by the one can be imputed to the other?

Or are they two separate conspiracy? And since we don't have a definition of the enterprise, which is even more expect than the conspiracy, we don't know whether or not she's gonna be able to make this thing out to be a single enterprise. There's no evidence in the record that says that.

And then if it turns out what the subdivisions are, it's not as though when you take all these people and try to put them into individual groups, that they're gonna line up in some kind of a natural order. So there's just a huge amount of political going on there, and everybody's gonna be coming out with their spreadsheets trying to figure out who was where.

And remember, you said, what? 19 people? Is that what you did

>> Tom Church: Yep.

>> Richard Epstein: Well, you remember there were 20 or so other people, who were listed as co-conspirator number one through whatever it was, and those people could be named. And often, as you know, the effort is to name people by that kind of designation only, and then hope to flip them so they'll rat out on everybody else.

But if they don't, then it perhaps this thing could become even more unwieldy. If she then decides to join another ten or 12 people, into this particular conspiracy. So, it turns out that the overall indefiniteness, just at the structural level that we're talking about here, is very, very great.

And I'm telling you, there may be great legal minds out there who spent a lot of time with RICO. But as best I can tell, the definitions are extremely fluid, which means, for the most part, if you wanna win a traditional RICO case, you sort of go after a very traditional kind conspiracy.

And indeed, there's special regulations inside the federal Justice Department which limit the ability of somebody at the field level to bring a RICO case. Because these things are so contrived, so concocted, and so uncertain that the thought is that in some cases, they give a prosecutor an overwhelming advantage.

But in other cases, what it will have is they'll be so convoluted that what happens is the whole thing gets thrown out, then they have to start over again. Statute of limitations may run. Other information may come up. So this is a double-edged sword. We're never quite sure who's gonna win.

It's not a game that I would have played. I much prefer the kind of indictment that Jack Smith made, which was much more concrete and told the narrative story. I even think he made a mistake. I do not think he should have brought any claim that had to do with theft of honor's services or the nonsense that took place on the steps of the thing.

I think he should have stuck to the corruption of the process, starting essentially with the effort to turn pence and to shift everything around. He didn't do that. My guess is when it gets to trial, he's gonna let a lot of this stuff slide so that he could focus his attention on the things that matter most.

>> Tom Church: Well, let's focus on this Georgia case. What could matter most? Because like you said, the Jack Smith case is kind of falls into two parts, right? It's that false statements, and then it's the fake electors trying to mess up the actual count. In this case, I think it breaks down into maybe three parts.

And it's interesting because with so many co conspirators, it's not like it's the same 19 the entire time through all the counts.

>> Richard Epstein: That's clearly correct.

>> Tom Church: Right, so there is the making false statements to election officials, which in Georgia is a crime that can be charged, which seems.

Well, that'll be an interesting one. There is the scheme with the fake electors. So that's being charged. And then there is this additional part about in Coffey County, I think, alleged Sidney Powell as a rig leader, brought Republicans in, copied election data and software, and then took it outside the state and gave it to other people.

So it feels like it breaks down into those three parts. I'm sure there's more. What do you think would last if we could even go to trial? Least serious to most serious?

>> Richard Epstein: I think the most serious charge that's made, and the one which is not specified as such.

Was the very fraught conversation that was had when Donald Trump decided to confront Brad Raffensperger and so forth, who's the secretary of state Republican in the party. If you look at the New York Times headline, he said, you fined me 11,000 votes. Well, the headline is a deliberate creation of ambiguity intended to embarrass Mr Trump.

What he did say was, you fine me the votes, but you have to put it in the context of everything else. Because fine votes could mean one of two things. One it could mean is to go back and look at these records, because I really think I run and you messed it up.

Or the other thing means I don't care what's happened, I want you to fabricate 11,000 votes so that I win. It's pretty clear that Trump is saying the first, he is not saying the second. Because if you start with the beginning of the speech, what he does, he says, well, you know, I won this election.

Look at my crowds, look at Biden's crowd, essentially, that's always true. If you look to a Donald Trump crowd, this place is always jumping and thumping and everybody's having a good time. If you look at a Joe Biden rally, it turns out nobody could keep their eyes open.

But it's not enthusiasm that matters, it's balance that start to matter. And so you could say he's drawn the wrong inference, but what you cannot say is he's asking the guy to essentially take a dive and to violate the election laws. I don't think you can say that out of it.

Then he starts to go on and he starts to make his arguments about all the people who voted and comes back and Mister Trump, you are full of it. You said there were 5,000 people, we have 2. And he backed off of that. He says, but there are still other people who are missing in counting.

And Raffensperger just held his ground. Trump kept on ranting and raving about how there were other people out there. And then he said, you fine me those 11,000 votes, meaning he didn't believe anything that the other guys said to him about the regularity. And so at that particular point, they kind of parted.

And I think, in effect, that is just pretty strong advocacy. But I do not think that you could describe that as an effort to suborn justice and to create an illegal act. As a matter of fact, looking at this thing, when I first thought about it, there is a statement in there and you know the consequences.

By the way, if you don't get this right, a defense of criminal sanction.

>> Tom Church: Right.

>> Richard Epstein: But that's not a good thing for him to say. But the thing that's interesting about it, he did not say, I will press charges against you. I will bring the state system against you.

He simply warned him of what could happen. And there is this very, very occult distinction that takes place in all of these cases between something which is a threat and something that is a prediction. And the theory is you get into hot water for threats, you don't get into hot water for predictions.

So you're gonna have to decide what goes on at this point. Remember, you're in a criminal proceeding, and there is a vaguely known rule called the rule of validity. Which says if you've got two kinds of interpretation, since you're dealing with the criminal law, you will tend to favor that which is the more innocent construction.

It's not a rule that is uniformly followed. It is a rule that has often been denigrated. But it's one of these things that just keeps on hanging around, because in the end, the basic intuition is you have to have more to win on a criminal case than you do on a civil case.

And so if you're fraught with something like this, you're gonna give it the innocent construction. That's before, if you know, we start talking about the First Amendment question. And if you start dealing about the First Amendment and worrying about things like defamation and so forth. One of the things that you discover is that there are many cases where you're protected when you make false statements.

And certainly in the law of defamation, that happens all the time. And so you can't just simply say there's an absolute obligation to tell the truth. And then if it turns out that what happens is Trump actually believes this stuff, you're then going to say, well, is it just a matter of good faith?

Now, you're not gonna say that. I'm not going to say that because I always believe it takes more than good faith. Well, then at that particular point, it is open to Trump, in my view, to say the following. I think that there were so many difficulties associated with the chain of custody and the control of various kinds of ballots that I'm pretty sure something got wrong.

And since Fulton County is where most of the stuff happened and where the vote was basically 70/30 in favor of my opponent, if that's where the ballots were taken, I have a perfectly good reason to be upset about this. And then he says, look, this is just not abstract speculation.

What this is is it turns out that they threw us out. They didn't let our monitors stay there. Some people had a bunch of boxes. The votes started coming out from underneath the counter. The votes started to shift. Now, I don't know how much of this is true, but some of it is not false.

And so what happens is a double edged sword. They're gonna say to Mister Trump, the fact that you're in good faith when you're wild eyed doesn't mean the slightest thing. He said, you'd have to show that you're reasonable. But in this particular case, he says, fine, I'm going to show you why I had reason to believe by pointing to the chain of custody difficulty that existed.

You may remember at the time that this thing was going on, you looked at any right wing site, they always had a bunch of statistical experts and forensic experts who insisted that what Trump said was, in fact, correct. Now he marches these people into this particular trial. Are you gonna be able to exclude them?

I don't think so. Are you going to be able to say that they're wrong? I think you could say that. Now you prove that they're wrong, that doesn't mean that he was crazy. It may mean that he was mistaken, which is not quite the same thing as being fraudulent.

It's a big difference in these cases. So you start going through this stuff and you try and work it out. I think, in effect, they're not going to be able to make that claim stick, that the most damning of the statements is, in fact, an actionable one. So now what you then have to do is to ask the next question.

If this case disappears, what's the common enterprise and how do we put it together? Not obvious. This is your piece of evidence, a one. This is not nearly as strong as evidence as anything that you had with respect to the Pence/Trump confrontation. And there is, of course, no way in which you have anything remotely like the 12th Amendment set up in the states that you have federally.

So I think you have to take that out. What else comes out? I'll just give you two other things which struck me. They just don't know the law. They said, well, all these people, they put forward an alternative slate. But let's be very careful about this. If your name is John Kennedy and there's a dispute in Hawaii that takes place in the year 1960, if you want to challenge that, you have to put together an alternative slate.

It's not that you're going to vote the slate if you lose the election or this challenge, but if you win the challenge, you have to have it. So putting an alternative slate together can't be a crime if it's a precondition for winning. If, in fact, you can get them to be persuaded that the recount is appropriate, so you can't do it on that.

Then they say, there's impersonation. No, impersonation means that I'm going to go in, pretend to be somebody who is an elector, take his name, and then vote the opposite way. That's not what they did. They said, I'm the head of an alternative slate. My name is x. He's not impersonating anybody.

And she calls that an impersonation. That's just wrong. She does the same thing when she says that if somebody signs a piece of paper using their own name is committing forgery because they're not the elector. No, they would be an elector if they forged the name of the guy who was on the other book and pretended to be that person.

But in this case, you don't have it. So those cases start to have to drop out. Then you have to testify before the legislation. And here, the objection that false statements before a legislature being a crime means that, in effect, everybody who works in or before government should be in jail, because the falsehood, and this is a very pliable concept.

And in those kinds of diffuse political setting, there is the general perception that you just don't do anything. In fact, the irony was, if you recall that when the Democrats wanted to get after Trump and his tax return, they didn't sue him for anything. What they did is they said that the oversight capacities of the Congress were entitled to the papers and they got the document and they were fools.

They got the documents. There's nothing there that anybody could point to as being a sign of a deeper regularity. But if it turns out they've got that kind of oversight right, then lots of other people are going to have that kind of oversight, and you're going to have lots of people going to be starting to testify.

And you could now say, the Trump people are going to say, look, you introduced all this evidence against me, turnabout is fair play. Now you have to let it come in. So you go through every one of these counts and then there's a separation issue. Say, okay, we have this stuff going on in some county, one person did that.

You're going to compute this to everybody else as part of this global enterprise? I think it's very difficult. So I suspect that what happens is they're going to beat a huge amount of stuff that's going on before you get to any kind of trial. And I don't think she pleaded her case well enough to persuade anybody that you can do this.

Alan Dershowitz, ever the realist, says she doesn't care about ultimately winning. She knows she's in a favorable forum and that there's going to be a heavy race issue. So she wants to get him convicted before the election and let them reverse it afterwards. In the meantime, we'll throw him in jail.

Now, my view on that question, I'll just stop at this note, is, I think, in fact, if Trump is elected, I don't care what the Georgia pardon law says. I think that if he's president of the United States and he has to take care to see that the laws are faithfully executed, he cannot do that so that the state laws have to yield to the federal rules.

This would be a case of absolute federal dominance, and he should be let out the day that the election results are told. Now, that, of course, is going to have to be litigated. And you know, I'm not 100% right. I'm very confident in what I believe, but I'm not very confident that other people will agree with me.

>> Tom Church: Richard, last set here for you, and I know you don't love answering political projections, but in a week, it's the first republican debate, we're still not sure if Donald Trump is going to show up. Many people are looking at these cases and whether guilty or not, whether the cases happen in time, whether he gets a not guilty, many people are saying, it doesn't matter.

It doesn't matter for general election. It's going to sink him enough. We need to move past. At what point does the Republican Party go through the primary and say yay or nay to Donald Trump?

>> Richard Epstein: Look, I think at this point, it's kind of answered itself. As you know, my view is that Donald Trump was never fit to be president of the United States, not because of policy, mainly, but because of temperament.

And you can say, look, the fact that you did not commit as charged four major felonies is not a qualification of becoming president. What you have to do is to have a certain degree of wisdom and a certain degree of forthrightness, candor, humility, and so forth. He fails on all those things.

And so what happens is, I would say I wanted him out in January of 2017. I'm still of the same thing. I support many more of his policies, I think, than of Joe Biden, to give you just one simple comparison. But again, the way this is playing out is exactly the opposite.

What Trump is able to do is to say that this is a political vendetta. He screams it from the top of his lungs. And how does he prove that? Well, he has some pretty powerful stuff. First of all, he talks about all the false campaigns that were great against him, and here he is pleading to his face, but even to some neutral parties.

Do we really like the Steele dossier? Do we really like the way in which he was impeached for what had happened in the Ukraine and so forth? Do we really think that the Mueller investigation were the appropriate thing? Do we think that the stuff that Adam Schiff came up with was worth the powder to blow it to hell?

And he can say, look, I mean, these guys have been after me. This is just a continuation by other means of the same game. Don't worry about the fine points. They would do this even if I was innocent to snow. And then he pointed the treatment on the other side.

He says, look at Hillary back in March of 2015, speaking about people who got the kid gloves treatment. She was able to say that a flatly illegal act was one that got her completely out of sanctions and no problems with it whatsoever. She was given the right to bring a counsel with her.

She was given notice of the questions in hand. Everybody basically gave her their thing. And then when it came to it, Mr. Comey said, well, she didn't mean anything wrong, so we'll just let her go. Whereas we know in every one of these cases, anybody else who did a tenth of what she had done would have been behind bars for a very long time.

And so as you start doing all this, he is going to make this into a case of two systems of justice and how good is that? Well, I think the following thing could be said. Most people do not know the fine points of the line between persuasion and coercion under the First Amendment in connection with picketing or legislative appearances.

But what they do know is that if you screw up one person and give a free pass to another person, that imbalance is unfair. So the epistemological issue that they're gonna focus on one is the one with the greater clarity and he's gonna gain support. And that's pretty much what happened and they're going to rally around the flag and all the other guys are gonna sit there, and they're basically immobilized.

They're not gonna go out there and say look, what happened is Trump is guilty of everything that was said about him, because in fact, that's not true. And some of this stuff is really a lie, and yet they now have to figure out how to differentiate themselves from him.

And it's extremely difficult to do so when we have this talk show, and we have not mentioned the single name of a single person who might be in the debate that's gonna take place in a week. So, at least in the short run, until it's catastrophic, Trump is going to prevail on this stuff and move forward, and nobody is able to stop him.

Any protestation that people like I make that this is not the right man, thank you very much for what you did, but please don't ruin the 2024 election like you ruined 2018, 2020 and 2022, that's just not gonna carry it. And the Democrats, well, they're gonna slow walk this investigation to some extent then speed walk it to another in order to maximize the exposure and to get the right sequence of these event.

And in fact, they love this cuz the more attention that goes to Mr. Trump, the less attention goes to Mr. Hunter Biden, and by implication, to Mr. Joseph Biden. So, I think in effect that what's happening is the Democrats will not jump Joe, if Trump is running, and if Trump is not running, then there will be opposition to him based upon ancient competence and a lot of other things.

But at least for the present, as far as I can see, the action against Trump has made it more likely than not that he will be the candidate. And the great irony in this case is that the Democrats are sufficiently disorganized in their own camp with sufficient vulnerability that when they put forward the weak candidate, it may well be that Joe Biden is the only candidate that Donald Trump can beat, just as Donald Trump is the only candidate that Joe Biden can beat.

And they both can't win the same election.

>> Tom Church: You've been listening to The Libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish@definingideasover.org. If you found this conversation thought-provoking, please share it with your friends and rate this show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church, we'll talk to you next time.

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