Trump argues state case is blocked by Supremacy Clause of US Constitution
(Bloomberg) — Donald Trump’s most complex criminal case is underway in Georgia state court, where the former president is accused of leading a conspiracy to stay in office after losing the 2020 election.
The indictment, filed Aug. 14 by Fulton County District Attorney Fani Willis in Atlanta, alleges the scheme by Trump and 18 co-defendants violated Georgia’s racketeering law. It’s one of four prosecutions Trump is facing as he campaigns to return to the White House. He has called the Georgia indictment a “travesty of justice” and said all the cases are politically motivated.
The latest major development in the Georgia case came on Sept. 11 when Trump sought to dismiss the indictment. His lead lawyer, Steven Sadow, asked Superior Court Judge Scott McAfee to let his client adopt arguments for dismissal filed earlier by other defendants, including his former lawyer Rudy Giuliani. Adopting the arguments will save Trump both time and money. Giuliani argues that the charges improperly target “an array of acts and conduct” that occurred in other states and are irrelevant to a racketeering conspiracy under Georgia law. (Details below.)
Trump’s request comes as Willis awaits a court ruling on her request to take all the defendants to trial as soon as Oct. 23, though McAfee said at a hearing last week that such a plan may be “unrealistic.” The judge has already agreed to have at least two of the defendants — including former Trump campaign lawyer Sidney Powell — go on trial on that date after they requested expedited schedules.
Willis claims that members of the alleged scheme participated in a “criminal enterprise” to reverse Trump’s defeat in the swing state even after it was verified by multiple recounts. She alleges they pressured Georgia officials to reject valid votes, organized fake presidential electors for Trump to prevent the certification of Biden’s victory, intimidated poll workers and stole election machine data in a rural county. All of the defendants pleaded not guilty after meeting an Aug. 25 deadline to turn themselves in for booking.
Here’s the latest on where each defendant’s case stands.
Donald Trump
Former US president
Surrender Date: Aug. 24Plea: Not GuiltyBail: $200,000
Charges (13 counts): Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act; solicitation of violation of oath by a public officer (3 times); filing false documents; false statements and writings (2); conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations: Prosecutors claim Trump advanced the scheme in a number of ways, including by spreading false conspiracy theories about voter fraud, pressuring several state officials to overturn Joe Biden’s win in Georgia and promoting a corrupt plan to win the state’s 16 Electoral College votes by appointing a slate of fake electors. Trump is quoted in the indictment pressuring Justice Department officials to make false statements by stating, “Just say that the election was corrupt, and leave the rest to me and the Republican congressmen.” His actions in Georgia stood out also because of an infamous phone call in which he and his aides tried to pressure Georgia Secretary of State Brad Raffensperger to “find” just enough votes to reverse his election loss in the state, despite the outcome being confirmed by a recount.
Trump’s surrender to the Fulton County Jail was televised live, and his mug shot was a first for a former president. He was in the facility for roughly 20 minutes. Shortly after he entered the jail, his name appeared in its database, recording his height as 6’ 3”, his weight as 215 pounds and his hair color as blond or strawberry. He was assigned inmate number P01135809. Trump later posted his mug shot on the social-media platform formerly known as Twitter, embracing the image as part of his claim that he’s the victim of a Democratic “witch hunt.”
The former president on Sept. 11 asked a judge to let him adopt motions by two other defendants — lawyers Rudy Giuliani and Kenneth Chesebro — to toss out the claims against him. Adopting motions filed by others, instead of having them drafted by his own legal team, will save Trump both time and money. Among other things, he seeks to adopt arguments that the Supremacy Clause of the US Constitution bars state authorities from prosecuting alleged conduct related to the counting of presidential electors, and that Georgia’s indictment improperly uses conduct in other states to build a racketeering case.
Trump said in an earlier filing that he may seek to have his case transferred to federal court from state court because the alleged conduct relates to his duties as president. He still has time to make that request. A federal judge on Sept. 8 rejected that same argument from another defendant in the case who sought a transfer, Trump’s former Chief of Staff Mark Meadows.
Rudy Giuliani
Former Trump lawyer
Surrender Date: Aug. 23Plea: Not GuiltyBail: $150,000
Charges (13): RICO; solicitation of violation of oath by a public officer (3); filing false documents; false statements and writings (3); conspiracy to commit impersonating a public officer; conspiracy to commit forgery; conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations: Prosecutors accuse Giuliani furthered the conspiracy by testifying falsely to Georgia lawmakers about far-fetched electoral conspiracies that were later debunked, in order to persuade them not to certify Biden’s win in the state. Giuliani also falsely accused election worker Ruby Freeman and her daughter of scheming to undermine Trump as votes were being counted on Election Day, claiming they passed around USB devices to tamper with votes “as if they’re vials of heroin or cocaine,” according to the indictment.
In his Sept. 8 court filing, Giuliani asked the judge overseeing the case to dismiss the indictment against him, arguing that the charges improperly target “an array of acts and conduct” that occurred in other states and are irrelevant to a racketeering conspiracy under Georgia law. He also argues that the broader federal case against Trump in Washington means that any conspiracy over the 2020 election — “if one exists” — took place in the nation’s capital rather than Georgia.
Giuliani said the indictment appears to acknowledge “that the events charged here are not a racketeering enterprise in Georgia at all, but are instead, at best, a predicate act to a purported national scheme.” The former New York City mayor also claims that some of the conduct amounts to standard campaign-related commentary.
“Many of the alleged ‘acts’ are statements, or portions of statements taken from phone calls, voice mails or ‘tweets’, in and out of context, while others, again regardless of context, are taken from campaign speeches or press conferences,” he said in the filing.
Mark Meadows
Former White House chief of staff
Surrender Date: Aug. 24Plea: Not GuiltyBail: $100,000
Charges (2): RICO; solicitation of violation of oath by a public officer
Allegations: Prosecutors say Meadows furthered the conspiracy by participating in a Jan. 2, 2021, phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to “find” just enough votes to reverse his loss to Biden in the state. Meadows, one of Trump’s closest aides during his effort to stay in office, also observed the audit of absentee ballot signatures in Georgia’s Cobb County and arranged the call with Raffensperger — both significant pieces of the alleged scheme, according to the indictment.
Meadows has been fighting to move the case against him to federal court from state court, which would allow him to argue that he was immune from state prosecution because his actions related to his job as an employee of the federal government. “I don’t know that I did anything that was outside my scope as chief of staff,” Meadows said on the witness stand during an Aug. 28 hearing on his request. But US District Judge Steve Jones in Atlanta on Sept. 8 rejected the transfer, concluding that Meadows wasn’t acting within the scope of his duties when he joined efforts to reverse Trump’s loss at the ballot box.
Jones said in his decision that Meadows’s request hinged on whether a president’s chief of staff can challenge the result of an election as part of their job. The judge said Meadows didn’t have a role to play in Georgia’s presidential election because the US Constitution delegates voting to the states.
“It would be inconsistent with federalism and the separation of powers to find that activities which are delegated to the states are also within the scope of executive power,” he wrote.
Shortly after the judge ruled, Meadows filed a notice at the district court that he’s appealing to the US 11th Circuit Court of Appeals in Atlanta. He asked to have the case put on hold while he challenges the ruling.
“If the state gets its way, Meadows could be forced to go to trial—and could be convicted and incarcerated—before the standard timeline for a federal appeal would play out,” the defense said.
On Sept. 12 Jones denied the request, ruling that Meadows hadn’t provided any argument “to convince this court that its decision was incorrect.” Meadows “has shown no likelihood of prevailing on the merits of his appeal,” Jones said in his ruling.
John Eastman
Lawyer who advised Trump
Surrender Date: Aug. 22Plea: Not GuiltyBail: $100,000
Charges (9): RICO; solicitation of violation of oath by a public officer; filing false documents; conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations: Prosecutors accuse Eastman, a conservative lawyer, of writing a memo falsely claiming that then-Vice President Mike Pence could overturn the election results in Congress on Jan. 6, 2021, by declining to recognize Biden’s presidential electors from Georgia and other swing states. Eastman is also accused of making false claims about rampant voter fraud in a lawsuit challenging the election and testifying falsely to Georgia lawmakers about such claims.
Former White House lawyers told the House Jan. 6 committee that they strongly pushed back on Eastman’s theories — with one official calling them “completely crazy.” But Eastman blasted the indictment when he turned himself in for booking, saying in a statement that the charges “should never have been brought.” He argued the criminal case violates his free-speech rights and tramples the right of a client to get advice from a lawyer.
Jeffrey Clark
Former Justice Department official
Surrender Date: Aug. 25Plea: Not GuiltyBail: $100,000
Charges (2): RICO; criminal attempt to commit false statements and writings
Allegations: Clark, who oversaw environmental and natural resources matters at the Justice Department under Trump, is accused of advancing the conspiracy by drafting a letter in December 2020 that falsely said the Justice Department had “identified significant concerns” about election fraud in Georgia and other states. The letter, which went unsent, urged Georgia officials to call a special session of the state legislature to overturn Biden’s victory. Trump had considered installing Clark as acting attorney general, according to testimony provided to the congressional committee. Top department officials threatened to resign en masse if Trump went through with that plan, and it never happened.
Clark is seeking to move the case to federal court from state court, arguing that he’s immune from state prosecution because he was an employee of the federal government during the alleged conduct. Willis has been ordered to respond to Clark’s request by Sept. 8. The judge set a hearing on the matter for Sept. 18.
Kenneth Chesebro
Lawyer who advised Trump
Surrender Date: Aug. 23Plea: Not GuiltyBail: $100,000
Charges (7): RICO; conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations: Chesebro, a lawyer in the Trump 2020 campaign orbit, is accused of working with Eastman to develop a fake elector strategy to disrupt and delay the certification of Biden’s election in Congress on Jan. 6, 2021. He is also accused of helping to organize the slate of fake electors in Georgia. He allegedly worked directly with top Georgia Republicans, including then-party Chair Shafer, to have the electors meet at the State Capitol on Dec. 14, 2020, and cast Electoral College votes in favor of Trump.
Chesebro set himself apart from the other defendants in the case on Aug. 24 by making the first formal request for an expedited trial under Georgia’s “speedy trial” law. Attorney Sidney Powell, another defendant in the case, late made the same request. The judge has scheduled a trial for both of them to start Oct. 23. The request prompted the district attorney to seek a joint trial for all defendants on Oct. 23, while Trump has asked to split his case off from any defendant who seeks a speedy trial.
Chesebro has also filed a motion to dismiss the indictment against him, citing the Supremacy Clause of the US Constitution. He argues that the claims against him must be handled by federal rather than state authorities because the claims relate almost entirely to conduct that allegedly took place after Georgia’s “safe harbor” deadline for resolving disputes over presidential electors. That’s because Congress’s counting of presidential electors is governed by the federal Electoral Count Act of 1887, Chesebro said in his filing.
“Under the Supremacy Clause, the state cannot prosecute or otherwise regulate conduct that was entirely within the ambit of federal authority,” his lawyers said in the filing.
Chesebro has also filed a request to talk with grand jurors and view transcripts of their discussions, and he wants the judge to disclose the names of unindicted co-conspirators. A hearing on the request is set for Sept. 14.
Sidney Powell
Former Trump campaign lawyer
Surrender Date: Aug. 23Plea: Not GuiltyBail: $100,000
Charges (7): RICO; conspiracy to commit election fraud (2); conspiracy to commit computer theft; conspiracy to commit computer trespass; conspiracy to commit computer invasion of privacy; conspiracy to defraud the state
Allegations: Powell, an architect of the conspiracy theory that the election was rigged by voting-machine companies and foreign hackers, worked closely with Trump, Giuliani and others at the White House to craft a plan to block the transition of power to Biden, including by seizing voting machines for a partisan investigation. Among other things, she is accused in the indictment of hiring a forensic data firm to breach election equipment in rural Coffee County, Georgia, and copy voter software and data. The alleged breach — which took place the day after the Jan. 6, 2021, insurrection in Washington — was part of a last-ditch plan to find proof of voter fraud despite the election result being verified by recounts.
Powell asked the judge overseeing the prosecution to expedite her case under Georgia’s speedy-trial law, resulting in an Oct. 23 trial date alongside another defendant who sought an early trial, Kenneth Chesebro. The judge denied their requests to split their cases off from each other — a request they made after arguing the are accused of participating in different parts of the conspiracy that do not overlap.
Powell joined Chesebro in asking the judge to allow their lawyers to talk with grand jurors and view transcripts of their discussions. She also wants the judge to disclose the names of unindicted co-conspirators. A hearing on the request is set for Sept. 14.
Jenna Ellis
Lawyer who advised Trump
Surrender Date: Aug. 23Plea: Not GuiltyBail: $100,000
Charges (2): RICO; solicitation of violation of oath by a public officer
Allegations: Ellis, who once described herself as part of an “elite strike force” fighting for Trump after the election, is accused of advancing the scheme by writing a memo outlining a strategy to disrupt the Electoral College certification in Congress. She’s also accused of joining Giuliani in making false claims about the election.
Ellis was formally censured earlier this year by the Colorado Supreme Court after admitting to making 10 misrepresentations about the 2020 election. Ellis, who is from Colorado, agreed with a disciplinary judge that she repeatedly misrepresented facts on social media and national television, including by claiming the presidential election had been stolen and that Trump “won in a landslide.”
David Shafer
Former Georgia Republican Party chair
Surrender Date: Aug. 23Plea: Not GuiltyBail: $75,000
Charges (8): RICO; false statements and writings (3); impersonating a public officer; forgery (2); criminal attempt to commit filing false documents
Allegations: Prosecutors claim Shafer furthered the conspiracy by arranging a meeting on Dec. 14, 2020, to certify as electors a slate of Trump supporters — including himself — who falsely claimed they were the “duly elected and qualified presidential electors” from Georgia. Shafer tweeted his own mug shot after completing his booking. Like Meadows and Clark, all three fake electors in the prosecution have asked to have their cases moved to federal court.
Ray Smith III
Georgia lawyer who advised Trump
Surrender Date: Aug. 23Plea: Not guiltyBail: $50,000
Charges (12): RICO; solicitation of violation of oath by a public officer (3); false statements and writings (2); conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations: Prosecutors accuse Smith of furthering the alleged conspiracy by making false statements to Georgia lawmakers about votes being cast by felons and dead people. Willis also alleges Smith helped certify the list of fake presidential electors for Trump that was officially submitted.
Smith on Aug. 28 became the first of the defendants to formally enter a plea of not guilty. Smith did so a court filing that waived his arraignment hearing and formally denied “each and every charge of the Indictment.”
Cathleen Latham
Former Coffee County Republican Party chair
Surrender Date: Aug. 23Plea: Not GuiltyBail: $75,000
Charges (11): RICO; impersonating a public officer; forgery; false statements and writings; criminal attempt to commit filing false documents; conspiracy to commit election fraud (2); conspiracy to commit computer theft; conspiracy to commit computer trespass; conspiracy to commit computer invasion of privacy; conspiracy to defraud the state
Allegations : Prosecutors allege that Latham furthered the alleged scheme by agreeing to be one of 16 fake Trump electors and by helping arrange the alleged breach of voter data in Coffee County in January 2021. Accessing voter data would have been one way to to try to back up assertions of voter fraud. Like Meadows and Clark, all three fake electors in the prosecution have asked to have their cases moved to federal court.
Michael Roman
Former Trump campaign official
Surrender Date: Aug. 25Plea: Not GuiltyBond: $50,000
Charges (7): RICO; conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents
Allegations : Prosecutors say Roman helped organize slates of fake electors in several states, including Georgia.
Robert Cheeley
Georgia lawyer who advised Trump
Surrender Date: Aug. 25Plea: Not GuiltyBail: $50,000
Charges (10): RICO; solicitation of violation of oath by a public officer; false statements and writings; conspiracy to commit impersonating a public officer; conspiracy to commit forgery (2); conspiracy to commit false statements and writings (2); conspiracy to commit filing false documents; perjury
Allegations : Prosecutors allege that Cheeley advanced the alleged conspiracy by falsely testifying to Georgia lawmakers that Fulton County election workers had “voted” the same ballots “over and over again” on Election Day. He is also charged with perjuring himself before the special-purpose grand jury that heard evidence in the Fulton County case.
Shawn Still
Fake Trump elector
Surrender Date: Aug. 25Plea: Not GuiltyBail: $10,000
Charges (7): RICO; impersonating a public officer; forgery (2); false statements and writings (2); criminal attempt to commit filing false documents
Allegations: Still was one of three electors indicted over their role in the scheme to present a bogus slate of 16 Republicans as the “duly elected and qualified” electors submitted in support of Trump. Like Meadows and Clark, all three fake electors in the prosecution have asked to have their cases moved to federal court.
Scott Hall
Georgia bail bondsman
Date: Aug. 22Plea: Not GuiltyBail: $10,000
Charges (7): RICO; conspiracy to commit election fraud (2); conspiracy to commit computer theft; conspiracy to commit computer trespass; conspiracy to commit computer invasion of privacy; conspiracy to defraud the state
Allegations: Prosecutors claim Hall flew to Coffee County on Jan. 7, 2021, to help with the unlawful breach of election equipment and voter data.
Misty Hampton
Former Coffee County elections supervisor
Surrender Date: Aug. 25Plea: Not GuiltyBail: $10,000
Charges (7): RICO; conspiracy to commit election fraud (2); conspiracy to commit computer theft; conspiracy to commit computer trespass; conspiracy to commit computer invasion of privacy; conspiracy to defraud the state
Allegations: Prosecutors allege Hampton assisted employees of forensic data firm SullivanStrickler in breaching voting machines in Coffee County.
Stephen Cliffgard Lee
Police chaplain from Illinois
Surrender Date: Aug. 25Plea: Not GuiltyBail: $75,000
Charges (5): RICO; criminal attempt to commit influencing witnesses (2); influencing witnesses; conspiracy to commit solicitation of false statements and writings
Allegations: Prosecutors say Lee tried to intimidate Fulton County poll worker Ruby Freeman by visiting her at home and “purporting to offer her help” with the goal of getting her to give false testimony about Election Day events.
Harrison Floyd
Former director of Black Voices for Trump
Surrender Date: Aug. 24Plea: Not GuiltyBail: $100,000
Charges (3): RICO; influencing witnesses; conspiracy to commit solicitation of false statements and writings
Allegations: Floyd, a US Marine Corps veteran who owns his own political consulting firm, is accused of advancing the conspiracy by participating in a scheme with former Kanye West publicist Trevian Kutti to manipulate Georgia election worker Ruby Freeman into giving false testimony about voter fraud on Election Day.
Floyd initially did not reach a bond agreement and was taken into custody for several days, becoming the only defendant in the case to be detained. His lawyer urged the judge to accept a $100,000 bond agreement in the case, pointing out that his client was the only Black male defendant and the only who’d been locked up. The lawyer also noted that Trump was free on bond despite being a defendant in four criminal cases. The judge signed the bond deal on Aug. 29.
Trevian Kutti
Former Kanye West publicist
Surrender Date: Aug. 25Plea: Not GuiltyBail: $75,000
Charges (3): RICO; influencing witnesses; conspiracy to commit solicitation of false statements and writings
Allegations: Prosecutors claim Kutti was enlisted to travel from Chicago to Fulton County to visit Freeman at her home, where she falsely identified herself as a crisis manager who wanted to help her. She allegedly joined Lee and Floyd in trying to influence Freeman’s testimony about Election Day events, attempting to pressure her into five false testimony about voter fraud.
(Updates with denial of Meadows’srequest to put his transfercase on hold and with Powell’s and Chesebro’s requests to talk to the grand jurors.)
More stories like this are available on bloomberg.com
©2023 Bloomberg L.P.