By Alan M. Dershowitz, via The Daily Caller News Foundation |August 16, 2023
I’ve practiced criminal law for 60 years — there’s no way this case could go to trial in six months.
The Georgia prosecutor who indicted Donald Trump and 18 co-defendants — yes, she indicted them, the grand jury merely rubber-stamped — has said she will try to bring the case to trial within six months. I have been practicing criminal law for 60 years, I have never seen a trial with 19 defendants, a 90-plus page indictment and this degree of complexity brought to trial in anywhere close to six months. It simply can’t happen.
Why then did she begin this case, which is about lying, by misleading the American people? Because to her, this case seems entirely political. Is she using it to run for office, or is she bringing it to garner favor with other Democrats?
This sprawling indictment rests largely on the so-called RICO law — a law that was designed to prosecute and bankrupt members of organized crime. I recall a client of Italian American heritage complaining that the law was targeted at the mafia: “Why else would they call it RICO instead of Morris or John?” He was being perceptive.
Subsequent to its enactment, the RICO law became a favorite of prosecutors, although many RICO convictions were later overturned on appeal. It turned out that RICO prosecutions were more appealing to jurors than they were to judges. That is because jurors want to convict racketeers, while judges need to apply the law fairly.
One serious problem with this indictment is that the 19 defendants may not all share the same state of mind or intent. Surely some of them, including Donald Trump himself, actually believed and still believe that the election was unfair. Others may have joined in that erroneous belief, while still others may have their doubts.
I am aware of no evidence that Trump himself ever expressed doubts about his certainty that the election was stolen, but it is possible that prosecutors may be able to introduce testimony that other defendants had expressed doubts, or may even have admitted that the election was not stolen. This diversity of viewpoints may pose problems for the prosecution, as well as for the judge who must instruct the jury on the law applicable to each defendant.
Even when RICO and conspiracy are charged, individual guilt must be proved beyond a reasonable doubt. American law does not recognize guilt by association. Every defendant must have the requisite intent, and that intent must be proved in every case beyond a reasonable doubt.
Some courts have been sloppy in applying the intent requirement to RICO and conspiracy prosecutions, but the Supreme Court has never deviated from the requirement that individual guilt must be proved beyond a reasonable doubt.
Because there are 19 defendants, this trial will take an enormous amount of time to conduct. Some defendants may choose to take the witness stand, others may not. Some may move for separate trials, others may not. Lawyers will argue with each other about certain rulings which may benefit some but not others of the defendants. A trial of 19 defendants guarantees a logistical mess.
There will be pre-trial efforts to move the case to federal court on behalf of some of the defendants but not others. There may also be efforts to change the venue of the case to a different Georgia county, even if it remains in state court. There will be arguments about the trial dates, because the 40 or more lawyers that are likely to be involved in this case will have different trial schedules.
Justice must not only be done, it must be seen to be done. This is especially true when the main defendant is also the main candidate against the incumbent president. Although this is a state, rather than a federal, case, it is being brought by a highly politicized Democrat who is clearly seeking to serve the interests of her party and her preferred candidate.
At the moment it appears that Trump will be required to be fingerprinted and to provide a mug shot (the inevitable T-shirt with the mugshot picture will probably be among the best sellers of all time!) The prosecutor appears to be trying to milk this case for every partisan benefit she can secure, both for herself and for her party.
One key issue is going to be whether there are any motions that can be made, which, if they are denied, can be immediately appealed. Such an appeal would probably delay any trial, possibly even beyond election day.
The law varies from state to state regarding the immediate appealability of certain motions, but the motion to move the case to federal court is almost certainly appealable. The current indictment on its face seems strong: it tells a sad tale of claims of corruption, perjury and malfeasance.
But as the prosecutor reminded her listeners, all of these defendants are presumed innocent. We must await the presentation of evidence and the cross-examination of witnesses to assess the actual strength of the case.
I predict that the case will be weaker and more subject to challenge as it progresses to trial and verdict.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece is republished from the Alan Dershowitz Newsletter.
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