The Highly Dangerous Georgia Indictments

This week, Fulton County District Attorney Fani Willis launched a 98-page missile directly into the heart of American politics. That missile was a 41-count indictment charging Donald Trump and 18 alleged co-conspirators with violation of the Georgia version of the Racketeering Influenced and Corrupt Organizations Act – acts in furtherance of a conspiracy to commit a criminal act. In this case, the criminal act, according to the indictment, was “knowingly and willfully [joining] a conspiracy to unlawfully change the outcome of the election in favor of Trump.”

Whether this amounts to a crime comes down to the question of whether Trump himself knew that he had lost the election; if he believed that he had won, then all the other accusations about him fall away. After all, it is not a crime to pursue a spurious legal strategy in furtherance of a delusion. But by charging RICO, Willis extends the case to people who may have admitted that Trump lost the election. This accomplishes two purposes. First, it puts these alleged co-conspirators in serious legal jeopardy, and gives them reason to flip on Trump himself. Second, it may allow Willis to charge Trump as part of a criminal conspiracy even if he personally believed he won the election — after all, case law suggests that co-conspirators can be charged under RICO even if they didn’t agree on every aspect of the conspiracy, so long as they knew the “general nature of the enterprise.”