Yesterday, a friend sent me an op-ed from Jennifer Rubin of the Washington Post. It addressed her thoughts about what D.A. Fanni Willis might be charging in Georgia, concerned that it was not only going too far, but gambling with her career if she pursued RICO Act charges. (The title of the op-ed is: “A tenacious prosecutor investigating Trump risks undoing her good work.”) While my friend didn’t agree with Rubin, he knew her to be a first-rate reporter, and so was surprised by it and was curious how I perceived her position.
I thought my friend was being polite. I thought the article was ridiculous. Not that all of what she said was wrong – I think there are some smart concerns – but it’s presented not so much as concerns, but almost as definitive conclusions. And since Jennifer Rubin has such a high-profile and being as talented as she is, she tends to rightfully be taken more seriously than many reporters and has a wider reach. You can read her op-ed column here, which I recommend – it’s interesting, regardless of how off-base I thought it was. However, I think that most of my comments will be in enough context that it should largely be clear for those who decide to pass. As I said, I think that Jennifer Rubin’s point is interesting, but ultimately I found the piece empty. It starts with a premise that “This is a mistake” if Fanni Willis does indeed make an expansive Georgia RICO act charge which seems to be the case, since RICO cases are more convoluted, deal with racketeering, take longer, require more evidence, can be confusing to a jury, and take on more risk, which is an understandable and reasonable position – but as a supported conclusion, not as a premise. And then she builds presumptions from that which are hers alone, but might not be Fanni Willis’s. (“Might not” being the gracious term.) While making presumptions is absolutely fine, to have meaning they should be supportable. I don’t find that the case here. After all, she has no idea what actions Fanni Willis has uncovered. No idea what evidence has been found to prove criminality. No idea who all the cooperating witnesses are. No idea what they’ve said. And importantly, her article shows that she has no idea how the Georgia RICO Act differs from the Federal RICO Act (which is significant), and seems to use the latter Federal Act as her standard for complaint. Keep in mind, too, that there were a lot of highly-experienced lawyers saying at the time that it was a massive risk for the DOJ to pursue Seditious Conspiracy charges against the Oath Keepers and Proud Boys, because it was a charge that was rarely tried, was so difficult to be successful and has failed in the past – and prosecutors ended up getting near-unanimous convictions. Jennifer Rubin has a law degree. But despite that, she is basically saying, “Convict Trump now and fast, based on his phone call, and forget everything else.” That sounds great and smart on one level, but imagine the alternative if Trump alone was indicted. The reaction likely would be, “But what about Rudy Giuliani, Mark Meadows, Sidney Powell, Lindsey Graham, all the fake electors and more??? How could they all get off Scot free?!!” To be clear – I’m not saying that Jennifer Rubin’s point is wrong. It’s that I don’t know…and she doesn’t know either (which is fine), but she wrote her uncertainty as if it was fact, based on no evidence. For example, one passage stood out as indicative of the whole op-ed, though perhaps most egregious -- “You can bet Trump’s lawyers will argue that she’s trying to use a mafia crime statute beyond the intent of the law and/or claim that the law is so broad and vague as to raise constitutional issues. Trump’s counsel might also argue criminalizing a campaign or an entire administration raises federal preemption issues. Willis undoubtedly has responses and can point to uses of the law in other public corruption cases, but why chew up the time and risk a setback? “If her aim is to secure a conviction swiftly, this is not the way to do it. Of course, if she is content for other cases to go first, she might not mind a case that takes a year or more to get to trial.” There’s so much to unpack here that leaped out as wrong-headed. For starters, you can bet Trump’s lawyers will argue against everything Fanni Willis says, whatever she says, whoever she indicts. That doesn’t mean it would be a compelling argument what the defense argues or, importantly, that she isn’t prepared with a response. (I have a lawyer friend who is always telling me with impactful certainty what a winning case would unquestionably be for various legal cases in the news. I periodically reply, “You do know there will be a lawyer on the other side waying why all that is wrong?” He’ll usually roll his head and say, “True.”) Further, from everything I’ve heard, the Georgia RICO Act is not a “mafia crime statute” at all. It’s much broader, and she’s used it in a great many cases totally unrelated to the mafia – and has a great track record of convictions. And has brought on to her team one of the state’s leading experts in Georgia RICO. So, Ms. Rubin’s reference about the Georgia RICO Act’s “intent” is said without her seemingly knowing (or at very least, honestly addressing) what the law’s actual intent is. Additionally, her saying pointedly and definitively that Trump’s lawyers “will” claim the law is so vague as to raise “constitutional” issues leaves out something critical – what “constitutional” issues?? And again, it’s near-certain claim that whatever she does, defense attorneys will argue the opposite, and Fanni Willis likely has prepared an answer for that. Whether either side convinces the jury is what trials are about. Ms. Rubin then throws in that Trump’s lawyer’s might (there are a lot of “might’s” in the article – which is fine, but not when your conclusion is unequivocal that what Fanni Willis is doing appears to be wrong) – might argue this is a presumption of federal law. Which is all just silly non-lawyer mumbo jumbo trying to sound like Perry Mason. I’m sure that whatever D.A. Willis charges has Georgia statutes to support it. To think otherwise is to suggest that she is a total incompetent. That doesn’t mean she’ll be be able to prove she has the evidence, just that her charges will be Georgia specific. And after all the “might’s,” Jennifer Rubin finally admits that, oh, okay, yes, “Willis undoubtedly has responses and can point to uses of the law in other public corruption cases.” Which is pretty blunt (“undoubtedly” and “can point” to the law) considering all the suggestions of what D.A. Willis is doing wrong, flimflammed by the defense. But then Rubin dismisses even that – yet not with an argument in reply to show why the undoubted case law is actually weak – but rather with a totally non sequitur response that has absolutely zero to do with the point she was trying to make and which she herself just refuted. Instead, she ignores all that, switches course completely, and all she says is that, well, yeah, she can show they’re wrong and she has the law to prove it, but… but that will take longer and be a risk. By the way, anything the D.A. charges will be a risk. But then, for all we know, showing all these people conspiring together could end up being less of a risk than trying to prove Trump alone just made a poorly-phrased phone call and was merely asking for Georgia to keep looking for missing votes. Showing a Georgia RICO conspiracy might show a full context and make clear this wasn’t just one bad, mis-phrased phone call. But a racketing conspiracy. Finally, Jennifer Rubin writes, “If her aim is to secure a conviction swiftly…” Okay, we have to stop right here. I don’t think for one second that this is Fanni Willis’s aim. And I think it’s silly to even suggest it is. Nor necessarily that it should be her aim. Only as almost an afterthought does Jennifer Rubin toss off, “Of course, if she is content for other cases to go first…” Dismissive as Jennifer Rubin is trying to be here, I think it’s very clear that this isn’t an “If” matter in the slightest, but an obvious reality that Fanni Willis does not expect for her case to go to trial first. It’s why she’s taken so long to investigate it. Indeed, what is obvious, as well, is that Fanni Willis’s interests are totally different from Jack Smith’s. She clearly has no concern about being first, or cares how long it takes to come to trial. On the other hand, Jack Smith was looking at having to make a very difficult charge to prove that could overlap with “free speech,” so he dropped it. What she’s investigating is unrelated to that. (Even if Trump tries to claim his threatening phone call is free speech. But if so, that’s all the more reason to investigate all the other related issues.) I’m not saying that Jennifer Rubin’s premise is wrong – expansive charges are a risk And a single charge against Trump would be faster and cleaner to deal with. The problem I have with with her article is that she writes it as a conclusion, doesn’t back it up with evidence, just has a lot of “might” and “if’s,” contradicts those, presumes intent that is hers alone, doesn’t seem to know Georgia law and might actually be wrong since a Georgia RICO case could conceivably be better to charge than a single one against Trump. She’s only really spot-on right about how this will take longer and has a risk. But importantly…it doesn’t have to be first, there are SO many others – and all of them (including whatever she charges) have risk.
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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