Former President Donald Trump surrendered to law enforcement officials in Fulton County, Georgia, on Thursday after a grand jury there indicted him on 13 felony charges related to his effort to steal the 2020 election he lost to Joe Biden.
Trump is facing felony charges for racketeering, soliciting a public officer to violate their oath of office, making false statements and conspiring to impersonate a public official, committing forgery, and committing and making false statements to public officials. The charges in Georgia come on top of three other indictments, two in federal court and one in New York. Trump has denied any wrongdoing in the cases.
The racketeering charges are perhaps the most serious, as they charge Trump, along with 18 co-defendants, under the Georgia Racketeer Influenced and Corrupt Organizations (RICO) law used to indict participants in a criminal conspiracy. RICO has often been used to prosecute the mob or drug gangs, and has most recently made news in the Atlanta prosecution of the rapper Young Thug. Now, its use in an alleged political conspiracy is unique and makes the Georgia case stand out from the other three criminal cases against Trump.
The Georgia case also raises important constitutional issues related to presidential immunity that courts have not debated before. On Aug. 15, Trump’s former chief of staff and current Georgia co-defendant Mark Meadows filed to move the trial from state court to federal court. To win a removal, Trump will need to argue to the 11th U.S. Circuit Court of Appeals that he was acting in his capacity as a federal officer ― and not a political candidate ― when he committed the acts Fulton County District Attorney Fani Willis alleges are crimes. He will also need to show that he has a credible federal defense, like an argument that as president, he is immune from prosecution for his official actions.
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Notably, all these issues are first impression issues — meaning, this will be the first time they are coming before a court. Not only is there no precedent to draw on, but whatever the courts decide now will set a standard for the myriad questions that may come next.
These are complicated issues. Ahead of Trump surrendering himself in Fulton County, I asked Georgia State University College of Law professor Eric Segall, who specializes in constitutional law and the federal courts, to help explain them and game out how this case could play out in the courts.
Trump has now been indicted four times ― two of those indictments, in D.C. and in Fulton County, relate to his efforts to overturn the election. What are the big differences in the case in Fulton County compared to the one in federal court?
Four letters: RICO. It’s really important that this is a RICO case. There are a lot of reasons for that, legal and non-legal reasons. First of all, by using RICO, Willis was allowed to bring in all the bad stuff that happened in Pennsylvania. And that’s a huge deal because, assuming that gets admitted in evidence and under RICO in any trial, it shows that what Trump allegedly did in Georgia, he also did in Pennsylvania.
Imagine you’re trying somebody for murder, and they had allegedly murdered someone else in Pennsylvania, you can’t get that into evidence usually. But with RICO, you can. And so it makes for a much stronger case. Not only did they do these things here, but they did those things there. That’s one reason.
The second reason, it has a mandatory minimum sentence. Once we get through all the legal motions, if Donald Trump really finds himself on trial, whether in Georgia or federal district court, there’s a five year minimum sentence looking at him in the face. That’s something.
And then, third, is John Floyd, the lawyer who’s in the picture with the DA on the front page of the Atlanta paper. I’ve known John Floyd for 40 years, and he might be the most knowledgeable RICO attorney in the country. If I was being charged with RICO, he’s the very last person I’d wanna see across from me, and he’s clearly helping the DA. They’re not hiding that fact, and it’s a huge deal.
So those are three big differences between this case and all the other cases. If the case stays in Fulton County — it’s a big if, but if it does — that jury pool is heavily anti-Trump. Trump repeatedly maligned this district when the late Rep. John Lewis, who represented it, was alive. Trump criticized Lewis and said he lived in a crime-infested, terrible, dirty district ― all racial signaling. So, if he gets a Fulton County jury, he’s looking at a five year mandatory minimum ― that’s why he is gonna fight so hard to get out of Fulton County.
So on that question of the requests Trump has made to remove his case from state court to the federal courts, what is the process for that? What do you think is the likelihood of it happening, and how long could it drag out?
What the American people don’t want to hear, but which is true, is we are in completely new territory here. Completely new. No former president has ever been arrested like this. No former president has been charged in four different courts.
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There are law professors who publicly claim the president is not an officer for the purposes of the removal statute. I think they’re wrong. I think he’s clearly an officer. But will Trump judges buy that argument? Who knows? Don’t forget, of the 12 active judges on the 11th Circuit, six are Trump appointees.
Now, I’ve looked at the law, and I don’t think Trump meets the requirement of engaging in official conduct when he was acting as a candidate to overturn the results of a free and fair election. Despite that, it’s very difficult to predict what the federal judiciary is gonna do these days ― especially a 6-3 conservative majority on the Supreme Court ― on cases like this, politically charged cases that affect the whole country. Anyone who predicts that is being foolish.
He turns himself in on Thursday. There are these requests to remove to federal court already pending. What happens after that? What’s the process after he surrenders? And what should the public expect?
All the defendants who want to remove have to file to remove within three days. And then, I believe, the government gets 20 days to respond to that in the brief. Then there will almost certainly be some kind of evidentiary hearing.
He made the same motion in New York, which was a frivolous motion. I would’ve considered sanctioning his attorneys for that motion because there’s no world where paying a porn star off is official conduct by the president of the United States. Georgia’s different. In Georgia, he’s gonna say, “I was trying to ensure the fairness and integrity of federal elections.”
Now I want you to consider a Democrat president who is running for reelection, and imagine Alabama, or Mississippi, literally having a bonfire, burning the votes for that person. And the president comes in with the National Guard and says, “You can’t do that.” Of course they can’t. And then he’s arrested in Mississippi on bogus charges — the charges in Georgia aren’t bogus, but I’m just keeping this hypothetical. Wouldn’t you and I want that case removed to federal court? Yes, we would. We’d want the case to be removed.
We have to remember that when we’re dealing with this issue today, because whatever the courts do here, it’s gonna matter. Now, I hope there’s no more presidents who are being arrested, but it’s not just presidents. Other federal officials may get arrested in the future, high level officers, and we need to have a procedure that’s fair. And like all Americans, Trump is entitled to due process and entitled to the presumption of innocence in a court of law.
So say Trump tries to claim immunity claiming he was acting as the president trying to protect the integrity of elections, as you said. How does that work?
If he was a president ensuring the impartiality of federal elections, they can’t arrest him for that. If he was a candidate trying to steal an election, or just a candidate, period, they can. But that is a first impression issue.
The removal issue is more statutory, but the supremacy clause immunity issue is a 100% constitutional issue of first impression.
As a constitutional law professor of 33 years and a federal jurisdiction professor of 33 years, I can tell you that my best reading of law and facts, which is that Trump — I’m not talking about the other defendants — should not win either the removal or the immunity motions. But that doesn’t mean he won’t.
Let’s say that the district court judge looks at the motion to remove and thinks like I do, which is, “Was he a candidate, or was he the president when he was doing the acts that the indictment claims were criminal?” What kind of hearing do you have? Normally it’s an evidentiary hearing, with these disputed issues of fact. But this is so circled by Trump’s subjective state of mind, and an objective question no court has answered to the best of my knowledge [when to determine whether a president acts as a president or as a candidate], I think you have to have something between an evidentiary hearing and a trial.
It sounds like there are a lot of complications that could lead to this being dragged out for quite some time.
Oh, yeah. Don’t expect a trial anytime in the near future in Georgia.
Willis is seeking a trial date in March 2024. You think that is way too aggressive? [Note: Shortly after this conversation, Willis made a new request to hold the trial in October.]
My on the record comment is almost no chance [that will happen].
It would not surprise me if the 11th Circuit doesn’t take a long time to make sure they make the right decision. These are first impression issues involving the possible jailing of the former president of the United States and the front-runner for the GOP nomination.
I assume either way this goes, it gets appealed further up, all the way to the Supreme Court.
You would think so. And if the district court judges in the 11th Circuit act quickly in the interest of justice, I think there’s every reason to believe there were four Supreme Court justices who will grant cert, agree to hear the case, and just wait it out for a pretty long time. Once they grant cert, everything stops. They could sit on it after the election if they wanted to. They really might do that.
One last question: We’re seeing different filings coming from the different defendants. Trump and others have filed for their cases to be removed to federal courts, but Kenneth Chesebro filed on Wednesday to request a speedy trial. How does that change things, and does that show that the other defendants may be pulled in different directions from Trump?
Katie Fang [of MSNBC] put that out on the internet [on Wednesday], and I’ve been thinking about it ever since. Why would he do this? And my best guess as to why he’s doing that, is he must feel that he’s at odds with Trump on the merits.
And by the way, if I were him, I might think that because you don’t wanna be associated as a co-defendant with Donald Trump in Fulton County, Georgia. That’s the last thing anybody wants. Maybe he’s thinking Trump will get removed, or at least, he wants the trial to happen before the removal stuff is figured out. At least if he doesn’t wanna be associated with Trump.
Answers have been edited lightly for clarity and length.