Whatever your opinion on the man himself, there is a fundamental question of fairness when you consider that he is facing hundreds of years in prison, based mostly on novel interpretations of statutes that even his opponents admit have never been used in this way before.
Give credit where credit is due: The various prosecutors indicting former President Trump on a wide range of charges are extraordinarily creative. Jack Smith’s conspiracy theory based on speech, Fani Willis’ racketeering charges against a politician objecting to the outcome of an election, and Alvin Bragg’s transmutation of a misdemeanor into a felony charge, are both different and the same. Different because the charges vary widely as does the jurisdiction. The same because no one in the entire history of the country has ever been charged with these crimes in circumstances remotely similar to President Trump. The Fulton County, Georgia indictment which dropped this Monday, serves as a perfect example: Racketeering is a legal tool designed to prosecute organized crime. It’s defined as “a type of organized crime in which the persons set up a coercive, fraudulent, extortionary, or otherwise illegal coordinated scheme or operation (a ‘racket’) to repeatedly or consistently collect a profit.” Examples include the mafia’s classic protection racket, a fencing racket to sell stolen goods, a numbers or gambling racket, etc. The Racketeer Influenced and Corrupt Organizations Act, popularly known as RICO, was signed into law in 1970 with the stated purpose of “the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” No politician has ever been charged under the RICO act for actions that were self-evidently political in nature. There have been instances of bribery and extortion schemes, or politicians who’ve colluded to facilitate traditional organized crimes, but no one has ever attempted to apply it to a politician objecting to the outcome of an election. “We are in deeply uncharted territory,” Georgia State University law professor Anthony Michael Kreis told CBS News prior to the indictment. “Applying [RICO] in the election law setting is very new. That is something that we haven’t seen in Georgia before, and it hasn’t really happened elsewhere before.” As even The New York Times acknowledged, “Trump and his gang get the mob treatment” in a recent article by Susan Glasser.
The reason why no politician has been subject to these charges in these circumstances should be obvious to all: Politicians object to election results, including the pressuring of other politicians to do their bidding, all the time. Stacey Abrams is perhaps the most famous example in Georgia. After losing a close election for governor in 2018, she refused to concede and accused the state of “grossly” mismanaging the election including the intentional suppression of minority votes. Her opponent, and current governor of the state, Brian Kemp was Secretary of State at the time, and he was personally accused of using his office to effectively rig the election. To this day, she has never conceded. “Concession means to acknowledge an action is right, true or proper. As a woman of conscience and faith, I cannot concede,” Abrams said to supporters in 2018. “But my assessment is that the law currently allows no further viable remedy.” (An assessment Trump himself made after the votes were certified by Congress.) She told CNN’s Jake Tapper that there was “deliberate” and “intentional” interference in the election including the “systematic disenfranchisement” leading to the “destruction of the administration of elections in the state of Georgia.” She pursued legal actions and struggled to find enough votes to force a runoff. As recently as 2021, Ms. Abrams kept telling CNN that Kemp “won under the rules of the game at the time, but the game was rigged against the voters of Georgia,” language even Politico acknowledged echoed that which was “often invoked by Trump. “I, on November 16, 2018, acknowledged at the top of my speech that Brian Kemp is the governor of Georgia and I even wished him well at the end of the speech,” she said. “And in the middle, I talked about the fact we had a system that he managed, that he manipulated, hurt Georgia voters and the responsibility of leaders is to challenge systems that are not serving the people.” Her objections to the election were so strenuous they resulted in a lawsuit that was not resolved until 2022 when a judge found there was no merit to her claims. “Although Georgia’s election system is not perfect, the challenged practices violate neither the constitution nor the VRA,” U.S. District Judge Steve Jones in Atlanta wrote, referring to the Voting Rights Act of 1965. No lawsuit has ever found any wrongdoing by then Secretary of State Kemp, nor any merit to her many claims of voter suppression. Fortunately or unfortunately, her claims and legal actions were not given nearly the scrutiny as former President Trump, but we can certainly assume from what is publicly available that Ms. Abrams and her team spent a full week looking for enough votes to trigger a recount, votes she insisted existed, but never quite materialized. Personally, I am hesitant to call Ms. Abrams a liar about the outcome – I am sure she believes it was unfair as does President Trump – but that is the point. Filing lawsuits and exercising legal options to contest an election, even those that are not ultimately upheld by the courts, has never been seen as criminal, nor has the speech around it. In Ms. Abrams’ case, the courts did not support her claims about nefarious behavior by Governor Kemp, the state, or anything close to a rigged election, but still she said them and alleged that it was a conspiracy against her. Why is she not being prosecuted now as well?
To be sure, even some conservatives find this line of thinking to be a bit of “whataboutism.” John Sexton, writing for HotAir.com, noted “The cases of Abrams and Trump aren’t parallel. Stacey Abrams was a liar who lost the election. She wasn’t indicted because, beyond shooting her mouth off about being a winner, she didn’t actually try to undermine the outcome. In fact her campaign folded about a week later. What she did do is file a lawsuit claiming the election hadn’t been fair. Last year that case finally went to trial and Abrams’ team lost on all counts.” We can debate what it means to “undermine” the outcome as insisting an election is rigged and refusing to concede certainly seems to fit the description, but we do know that Ms. Abrams and her campaign spent that week attempting to increase her vote total to force a run off. It is difficult to see this as different from the infamous phone call where Trump urged the Secretary of State to “find” the votes, which serves as part of the indictment or different from the situation in Florida in 2000 where Vice President Al Gore targeted certain precincts to find the votes he needed to prevail. Vice President Gore wasn’t looking for votes in conservative districts. He was targeting those that might specifically change the outcome in his favor, as we can expect. As NPR noted in a contemporaneous article about Ms. Abrams in Georgia, “Abrams had been fighting to include additional provisional and absentee ballots into the count, hoping that could help her close the roughly 18,000-vote deficit she needed to force a runoff next month.” The campaign ultimately ran up against a deadline to certify the election results, and Ms. Abrams opted to change her legal strategy. “The Associated Press reported that the Abrams campaign had been considering additional legal challenges, including one before the state Supreme Court that was precipitated on a provision allowing a losing candidate to challenge results based on ‘misconduct, fraud or irregularities …sufficient to change or place in doubt the results.’” She ultimately decided to pursue a different case, resulting in a difference of degree rather than kind. Of course, Ms. Abrams is not the first to object to an election. Democrats objected to Republican victories in 2000, 2004, and 2016, using many of the same tactics that are now suddenly racketeering.
For example, District Attorney Willis’ indictment makes much of the Trump Campaign attempting to install their own electors in place of those previously chosen and elected. The most serious charges – forgery and impersonation – are all related to these supposedly “fake electors.” MSNBC reported that “One of the central components in the indictment involves a scheme to use a supposed quirk in election law to replace the state’s 16 presidential electors with an unauthorized alternative slate. Accordingly, a full 17 of the charges against Trump and his co-defendants are related to this plot.” In Georgia and six other states, these replacement electors were assembled to cast their votes for President Trump. The votes, obviously, did not have the force of law behind them, but the plan was to send these slates to Congress in any event. “The ‘fake electors’ cast their votes and signed their names to documents lawyer Kenneth Chesebro had provided to them. From there, the plan was to send those documents to Congress and the National Archives as the ‘real’ electoral votes in those states. As Chesebro wrote in an email obtained by the Jan. 6 committee, ‘the purpose of having the electoral votes sent in to Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump.’” MSNBC claims this “plot” is based on a “willful” misreading of the Electoral Count Act, but typical of these claims, the idea has never been tested. First, Congress has dealt with competing slates of electors before. The Electoral Count Act provides procedures for Congress to object to slates of electors. Under these provisions, Congress can choose to acknowledge a different elector “if there is an objection which meets the requirements of subsection” and “each House affirmatively sustains the objection as valid.” Even MSNBC agreed that the fake electors “formed the backbone of the attempt to either throw out the electoral votes of seven states altogether or send them back to their GOP-controlled state legislatures to potentially declare the Trump slates authentic.” As this is entirely legal – if not advisable or likely – it is very difficult to see how this is a criminal offense. Much appears to be made of the fact that they sent a letter of transmittal referring to themselves as duly elected, but it is impossible to say at this point what the ramifications may be given this was all occurring in public and no one was defrauded.
If you do not believe me, consider the opinion of lawyer and prominent President Trump critic in conservative circles, John Hinderaker, who has previously said quite vociferously that he is done with the former President and wants him to go away entirely. He recently commented on the Georgia indictment, “The second main thrust of the indictment involves the fact that Trump and his ‘co-conspirators’ arranged for an alternate slate of pro-Trump electors to be identified in Georgia. The indictment recites efforts by Trump and others to convince officials in Georgia and other states to certify his alternate slates, or otherwise to reverse the apparent results of the election in a particular state. These alternate electors were selected, as White House adviser Stephen Miller explained, to preserve Trump’s rights in the event that one or more of his legal challenges succeeded: ‘As we speak, today, an alternate slate of electors in the contested states is going to vote and we’re going to send those results up to Congress,’ he continued. ‘This will ensure that all of our legal remedies remain open. That means that if we win these cases in the courts, that we can direct that the alternate state of electors be certified.’ I don’t think that such alternate elector slates are unprecedented, and in any event there is nothing illegal about identifying such would-be electors, however futile it might be.” Obviously, neither of us has any idea how a jury may rule, but that doesn’t alter the fact that RICO charges in this situation are unprecedented, especially when you consider that no one was fooled by any alleged forgery, Congress officially certified the results according to the law after the riot on January 6th, and Joe Biden was duly sworn in shortly thereafter. In other words, despite President Trump’s futile attempts to exploit certain legal loopholes in the Electoral Count Act (which, by the way, some claim is not even Constitutional to begin with), the Act itself was followed in all particulars.
The same is true of Special Counsel Jack Smith’s indictment that alleges President Trump and his team conspired to obstruct the proceedings of the Electoral Count Act itself. According to Special Counsel Smith, the President intentionally lied about the results of the election and encouraged others to embrace these lies, but so what? Even setting aside whether or not the President truly believes he was robbed of a rightful victory, much the same played out after his victory in 2016 where a campaign was undertaken to encourage electors to break their respective state laws and vote against the rightful victor. In a situation that also has echoes of the Georgia indictment, a total of ten electors violated state law and voted for a different candidate than the one they were sworn to. They were encouraged to do this by politicians, the media, and celebrities. Three of the so-called faithless electors were addressed at the state level by either replacing them or reaffirming their commitment, but seven ultimately made it to Congress for counting. In this case, laws were actually broken as part of a coordinated campaign to overturn the election (dare I call it a conspiracy?), but to my knowledge no one was prosecuted, much less for conspiracy. Why not? Of course, some may accuse me of the dreaded whataboutism, but as many have pointed out, the legal process is essentially built on the principle. We compare what happened in the past, how the law was applied, and what the outcome was to ensure fairness in the future. Whatever your opinion on the man himself, there is a fundamental question of fairness when you consider that he is facing hundreds of years in prison, based mostly on novel interpretations of statutes that even his opponents admit have never been used in this way before. The only real exception is related to classified documents, where no President or high ranking official has been charged in the same fashion and his opponent was also found to be in possession of classified material, but many others have. Considering that he is currently the front runner for the Republican nomination and far and away the most likely person to run against Joe Biden next year, it should be little wonder why his supporters feel something foul is afoot. His opponents, of course, are aware of this, but simply do not care. Their desire to get Trump outweighs any and all sense of fairness or awareness that novel legal theories once applied might come true in the future and ensnare someone else.
Confessions of a Conservative Atheist 