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A grand jury in Fulton County, Georgia, handed up an indictment against former President Donald Trump and 18 alleged co-conspirators, charging them with efforts to overturn his 2020 loss in the battleground state.
The Aug. 14 indictment in Georgia was Trump’s fourth in less than five months, following indictments in a New York state hush money case, a federal classified documents case and a federal case addressing efforts to overturn the 2020 presidential election.
Trump allies have portrayed the four cases as politically motivated and amounting to prosecutorial overkill.
Although the Georgia case is the last out of the gate, legal experts say it could pose important challenges to Trump that differ from those in the previous three cases.
Here are three ways the Georgia case is different from the previous three, and how that could shape Trump’s legal and political fate.
A key element of the Georgia case will be the use of the state’s Racketeer Influenced and Corrupt Organization, or RICO, statute. All 19 people indicted were charged with a RICO count.
RICO laws let prosecutors draw a web of illegal activities committed by co-conspirators — not all of whom may be working directly with one another — into racketeering charges.
RICO laws have been passed both federally and in many states, including Georgia. Traditionally, RICO laws have been used to take down organized crime families and drug trafficking networks, but it’s not unheard of to see RICO used in other contexts.
The Georgia case is the only one of the four indictment cases to include RICO charges, and that gives Fulton County District Attorney Fani Willis unusual powers.
"RICO is a very expansive statute in Georgia, as well as on the federal level," said Joan Meyer, a former prosecutor and partner at the law firm Thompson Hine LLP.
Meyer said a RICO case has advantages, and downsides, for the prosecution.
A RICO case is more complicated and time consuming to try in court, because it involves a more detailed web of charges.
In contrast to Willis, Jack Smith, the federal special counsel, sought to indict just Trump in the election-overturning case, rather than also seeking indictments for a half-dozen co-conspirators who were cited anonymously in the indictment. Smith’s approach was widely seen as an effort to simplify the prosecution’s task — and quicken the case’s resolution.
However, using RICO provides prosecutors with useful leverage, too, legal experts said. RICO-related charges carry a maximum of 20-year prison terms — the longest of any of the charges Trump has been indicted for. And, under Georgia’s RICO statute, anyone convicted must serve a mandatory minimum sentence, all but guaranteeing prison time for Trump or others if they are convicted.
"When defendants face these kinds of charges, they generally opt to plead guilty and cooperate against each other," Meyer said. State prosecutors typically have room to negotiate a deal after indictment, she said, so "we may see some plea maneuvering even at this late stage."
The Georgia case could become the hardest one for Trump to avoid consequences.
A big part of Trump’s legal strategy has been to delay his cases from advancing for as long as possible. That way, he might be able to win the presidency and make his federal legal problems disappear.
If he takes office before the federal cases reach a verdict, he could order the Justice Department to shut down the prosecutions. If the federal cases have proceeded to a verdict or sentencing, he could argue that presidents can’t be prosecuted while in office, or Trump might even try to pardon himself.
These actions in federal cases would be untested legally, but a president’s ability to interfere in a state prosecution would be even more limited, legal experts agreed. Arguing that Trump has immunity from prosecution in a state case would be a tough sell.
"His argument would likely rely on principles of federalism and separation of powers," said Thomas Healy, a Seton Hall University law professor. "Would this argument succeed? It's hard to say because no court has ever addressed the question."
Trump would also be unable to pardon his co-conspirators in a state case, which gives the state prosecutors greater leverage to flip them against Trump, said Seth Kreimer, a University of Pennsylvania law professor.
In Georgia, the governor lacks pardon power. Instead, it’s up to a five-member state panel, which would complicate potential lobbying efforts by Trump. In any case, under Georgia law, pardons can be given only to those who have completed their sentence for at least five years.
The New York state case — which involves charges of falsifying business records in connection with payments to adult film actor Stormy Daniels — could also provide enough distance to preclude any efforts by a reelected Trump to intervene.
However, the New York charges "are based on a new legal theory and could be dismissed at some point," said Ric Simmons, an Ohio State University law professor. "That is unlikely to happen to the Georgia RICO charges."
Adding another case for Trump to defend against will further burden his team of attorneys. "Trump’s lawyers are fighting on all fronts now, so the emergence of a case this large means that scheduling and legal strategizing are made much harder," Meyer said.
Gregory P. Magarian, law professor at Washington University in St. Louis, agreed.
"Politically, I don’t see the Georgia indictment moving any needle much," he said. "Legally and materially, however, it will make Trump’s situation even more challenging."
The Washington Post, "RICO, the Georgia anti-racketeering law that could be used to charge Trump," Aug. 14, 2023
Axios, "Why Georgia's case against Trump could be so damaging," Aug. 14, 2023
Email interview with Joan Meyer, former prosecutor and partner at the law firm Thompson Hine LLP, Aug. 14, 2023
Email interview with Neama Rahmani, former federal prosecutor who is now president of West Coast Trial Lawyers, Aug. 14, 2023
Email interview with Gregory P. Magarian, law professor at Washington University in St. Louis, Aug. 14, 2023
Email interview with Seth Kreimer, University of Pennsylvania law professor, Aug. 14, 2023
Email interview with Ric Simmons, Ohio State University law professor, Aug. 14, 2023
Email interview with Thomas Healy, law professor at Seton Hall University, Aug. 14, 2023