The Democrats Are Using Criminal Law to Fight Their Political Battles. It’s Very, Very Dangerous.

In their quest to sink Donald Trump, state prosecutors have expanded the criminal law dangerously far into the realm of politics, and have threatened legitimate First Amendment activity. District Attorney Fani Willis‘ use of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act to charge a political campaign with conducting a criminal enterprise makes innocent political activity into fodder for prosecutors, all without providing defendants a clear guide as to what conduct violates the law. While Democrats may cheer Willis on in her effort to convict Trump and his hodgepodge of allies who sought to overturn the results of the 2020 election, their triumph may turn to regret when Republican prosecutors turn these tools on their own political campaigns.

RICO prosecutions are not limited to organized crime families or gangs, but there has to be an actual criminal enterprise and related criminal acts to further the enterprise. This is true even in Georgia, whose RICO statute is broader than others, including the federal one, because it combines a longer list of predicate offenses with a looser definition of “enterprise” and “racketeering.” A Georgia RICO conviction is a felony that has a statutory prison term of five to 20 years, a fine of the greater of $25,000 or three times the amount of money gained from the criminal activity, or both a prison sentence and a fine.

Right off the bat, the indictment’s first alleged overt act against Trump is his nationally-televised “victory” speech on the day after the election, which already goes beyond RICO case norms. Yet at the time of the speech, there was insufficient information available as to whether any voting fraud in Georgia had tipped the scales, no plan existed for alternate electors, and Trump seemed to genuinely believe that he won. Trump’s speech was protected under the First Amendment, which protects political speech, even if no one else believes the speaker, and even if it contains false information.

Furthermore, while Georgia RICO forbids defendants to “acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money,” no one alleges that Trump engaged in his post-election shenanigans because he was trying to gain money or property or control of a business. Moreover, unlike in a traditional RICO case, Trump did not create or belong to a criminal enterprise, as traditionally known, nor did he intentionally commit criminal acts for the purpose of keeping that enterprise going for the acquisition or control of property, money, or businesses. Instead, Trump wanted to be declared the winner of the 2020 election because he apparently genuinely believed that he won, regardless of what some advisers told him.

The indictment also cites as crimes the legal advice that Trump received. This sets a very dangerous precedent, because legal advice, even outlandish or bad advice, should not be criminalized, especially where the issues are novel and untested in court. For example, lawyers in famous Supreme Court cases such as Brown v. Board of Education, Miranda, Griswold, and many others argued against the existing precedent and legal thinking of their time, and certainly they were not and should not have been prosecuted.

Furthermore, it is quite possible that Trump’s post-election lawyers’ misguided strategy to create alternate slates of electors and the legal advice supporting it were based on two historical events: the 1876 Electoral College drama between Rutherford B. Hayes (R) and Samuel J. Tilden (D), and the 1960 presidential election drama in Hawaii between Richard M. Nixon (R) and John F. Kennedy (D). In 1876, Tilden won the popular vote and 184 electoral votes, but Republicans challenged the election results in Florida, Louisiana, and South Carolina, because, they claimed, the Democrats engaged in election fraud and intimidated Black voters. Hayes eventually won with 185 electoral votes, but the Democrats had presented alternate slates of electors from Oregon, South Carolina, Florida, Louisiana, and Vermont, knowing that their alternate slates from at uncertified or doubtful. No one was criminally charged, nor should they have been, even though Tilden’s nephew, William Tilden Pelton, admitted that he tried to bribe local election officials in Oregon, Florida, and South Carolina.

Similarly, in 1960, Hawaii Democrats challenged Nixon’s initial win, signed alternate elector certificates, and sent them to Capitol Hill, even though JFK was not declared to have won Hawaii until later. Again, no one was criminally charged and in fact the judge praised the Democrats for creating and signing an alternate slate.

In fact, on November 4, 2020, while Pennsylvania was still counting votes, Van Jones of CNN and Professor Lawrence Lessig of Harvard Law published a CNN article citing these events and endorsing alternate electors! Indeed, it’s worth noting that after the 2016 election, the Clinton campaign and allied groups such as Unite for America recruited celebrities like Martin Sheen to importune electors not to cast their electoral votes for Trump; electors received death threats, harassing phone calls, and hundreds of thousands of hostile emails. The Clinton campaign also tried to request an intelligence briefing on foreign election intervention in order to sway the electors with false information; the Clinton team cooked up the phony “Steele Dossier” and knew that it and other claims regarding Trump and Russia were false. Anyone who thinks that Clinton or her campaign staff—an actual organization or enterprise—should not have been criminally charged, as they were not, must therefore also think long and hard about whether Trump should be.

It may have been an irresistibly tempting part of District Attorney Willis’s calculus to file criminal charges against the leading Republican presidential candidate, especially because Fulton County is reliably Democratic and went for every single Democratic presidential candidate since 1976. However, her over-broad indictment should serve as a cautionary tale against twisting and distending criminal laws beyond their norms. Prosecutors should recognize that what can be charged is not always what should be charged.