United States

Is Trump going down?

In Georgia, legal accountability is catching up with political immunity

August 17, 2023
Donald Trump meeting supporters this week. Image: : ZUMA Press Inc / Alamy Stock Photo
Donald Trump meeting supporters this week. Image: : ZUMA Press Inc / Alamy Stock Photo

The irony is almost too on-the-nose. In the end, what will probably bring Donald J Trump to heel will not be his election loss in 2020; an attack on the US Capitol he winkingly endorsed in 2021; or even the indictment—and never-to-be-resolved federal lawsuit—outlining stolen documents hoarded in his chandeliered bathrooms at Mar-a-Lago. What may well end his long life of failing forever upward is a racketeering charge—filed under a sprawling Georgia conspiracy statute that mimics the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. This latter statute was a law passed in 1970 to make it easier to prosecute Mafia kingpins, who were able to evade criminal liability so long as they ensured it was someone else breaking the fingers and dumping the bodies into rivers.  

That Trump surrogate and personal attorney Rudy Giuliani, who made his political bones as a federal prosecutor in New York using these very laws to take down mob bosses and insider traders, has now been swept into a vast RICO indictment filed by a Georgia prosecutor is beyond ironic. But that Trump himself has been charged alongside 18 co-conspirators (plus 30 unindicted co-conspirators) on 13 counts—including racketeering, making false statements, soliciting public officials, and otherwise attempting to overturn his loss in Georgia in the 2020 presidential election by dint of organised crime—is a perfect capstone to his long and storied career of evading legal consequences.

Trump’s entire career as real estate magnate and television millionaire was littered with discrimination charges, tax avoidance tricks and fraud.

And the thousands of attendant lawsuits changed nothing, as he learned to dodge and weave through the American legal system using a familiar pattern of delay, settlements and wearing down opposing parties—all learned at the feet of his mentor, the late lawyer Roy Cohn. As president, Trump persistently scorned American laws and norms barring the acceptance of gifts and the keeping of public records; he used his office for partisan gain and trampled over the separation of powers; and his administration achieved the dubious benefit of losing 93 per cent of its lawsuits. Still, nothing seemed to stick. Accused by at least 26 women of sexual misconduct, Trump was finally adjudicated a sexual abuser by a New York jury last May. And yet it seemed that in the lifelong footrace between legal accountability and political immunity, the latter would forever win. But something about this Georgia indictment, which scooped up Trump’s chief of staff, a netful of attorneys and some small-town grifters, feels very different.

The case, laid out in 98 painstaking pages by Prosecutor Fani Willis in Georgia, is comprehensive in establishing that the plan to steal the 2020 election was conceived even before the voting tallies were in, and at the highest echelons of the White House. Unlike the Capitol riot of 6th January, 2021, the events that led to the systematic harassment and terrorising of Georgia election workers Ruby Freeman and Shaye Moss can’t be blamed on overstimulated rogue actors. It, and the effort to browbeat state elections officials to put forward false slates of electors in the byzantine US system that is the Electoral College, was all coming from the very top: “I just want to find 11,780 votes, which is one more than we have. Because we won this state, and flipping the state is a great testament to the country," Trump told Georgia Secretary of State Brad Raffensperger, in the phone call that launched the Georgia probe. Read it a few times in your best Tony Soprano voice. This is the stuff of crime bosses and—potentially—five-year-minimum prison sentences. 

Because this is a state and not a federal prosecution, Trump cannot pardon himself or others if he wins the presidency in 2024. Even Georgia’s Republican governor cannot offer him a pardon—that happens by way of a pardons board. And because it is a state and not a federal prosecution, the trial will most likely be televised, gavel to gavel, as the presidential primary season kicks into gear next spring.

Donald Trump remains, by a huge margin, the favorite to win the Republican presidential nomination. His closest competitors are flaming out spectacularly, inspiring to almost nobody, and several of these competitors have reacted to Trump’s legal woes by claiming that President Joe Biden and a host of liberal prosecutors have weaponised the criminal justice system to prosecute benign political speech.  

In that sense, these broad racketeering charges are apt. Because the conspiracy is, in truth, vast. And unless and until the Republican Party disavows the other co-conspirators charged with seeking to set aside election results in Michigan, Arizona, Pennsylvania, and the members of the House and Senate willing to go along with the plan to “decertify” the 2020 electoral college results, in some sense the conspiracy charges filed in Georgia are incomplete: unless the Republican Party as a whole renounces this entire sordid scheme to set aside an election, suppress urban and minority votes and task state legislatures with the imaginary power to change vote counts, the conspiracy set forth in this Georgia courtroom is less a crime than a blueprint for future attempts at election subversion.  

New polling suggests that something about this recent, fourth indictment has become salient for American voters: an ABC poll taken after the grand jury approved the charges suggests that 63 per cent of Americans believe the charges to be “serious” or “somewhat serious”, and 50 per cent of Americans say Trump should suspend his presidential campaign. Trump’s posts on his social media platform vaguely threatening judges, prosecutors and witnesses in his criminal cases may lead to pretrial protective orders limiting his speech, despite the fact that he is running for president. And the spectacle of Trump spending the next year fighting off one criminal charge after another (91 in total at present, in four separate cases) makes it unlikely that his support in a general election will skyrocket. 

But these political questions must be separated from the legal questions, because the electoral horserace matters less than the (slim) possibility that Trump will finally be held accountable on criminal charges. The Georgia lawsuit seeks to prosecute a concerted and deliberate conspiracy against voting rights and democracy. The principle of free and fair elections is of more fundamental importance even than the political outcome of the 2024 presidential election. This trial will be an opportunity to show precisely why.