Conservatives Talk Presidential Power: Trump's Indictment in Georgia

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Emily Manning:  Hello, everyone.  And welcome to this Federalist Society virtual event. My name is Emily Manning, and I'm an Associate Director of Practice Groups with The Federalist Society. Today, we're excited to host a discussion titled "Conservatives Talk Presidential Power:  Trump's Indictment in Georgia."  We're joined today by John G. Malcolm, Vice President for the Institute for Constitutional Government, and Director of the Meese Center for Legal and Judicial Studies, and Senior Legal Fellow at the Heritage Foundation; and Professor John C. Yoo, Emanual S. Heller Professor of Law at the University of California at Berkeley, Nonresident Senior Fellow at the American Enterprise Institute, and Visiting Fellow at the Hoover Institution.

 

      If you'd like to learn more about today's speakers, their full bios can be viewed on our website, FedSoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And, gentlemen, the floor is yours.

 

Prof. John C. Yoo:  Thanks, Emily. Thanks to The Federalist Society for hosting. Let's see, this would be episode two of series number two of "The Two Johns Talk Presidential Power."  As those of you may know, we thought we were done with this three years ago. But they pulled us back in. And we're here to talk again about the various issues arising with presidential power involving Trump, Biden, the executive branch, what's going on with the Supreme Court, and any questions that you might have. 

 

We're going to reserve the last 15 minutes to 20 minutes for questions from you. Please use the Q&A function, and Emily will select among the questions and ask both of us. John, how are you? I can see -- well, I'm not sure where you are, because I see behind you, you have a poster of Ed Meese. So, you could be in Heritage. But you could be somewhere in Georgia. Who knows?

 

John G. Malcolm:  No, no, no. I'm in my office. And that is an original artwork behind me of Ed Meese. 

 

Prof. John C. Yoo:  Because I'm sure Ed Meese is as popular in Georgia as he is in Washington D.C. And he's certainly popular where I teach at Berkeley Law. He's one of our proud alumni. And it's always a pleasure to welcome him back to school. I hope he might get a chance to see this. So, John, let's get right into it. I thought what I might do is ask you a few questions just to get us started. Because I know, even though you're from New York City, you pretend to be from the south. And you pretend to be from Atlanta. In fact, this you may know, me and John first met when we worked together in the Bush administration. And John was part of what -- I don't know if you guys called yourselves this, but those of us not from Atlanta called you guys the Atlanta mafia. 

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  You were all these people who had been assistant U.S. attorneys, prosecutors, and worked with the great Larry Thompson, who was the Deputy Attorney General under Bush, and was U.S. Attorney under Reagan, back in Georgia.  So, I actually, John, I think this, what we're going to talk about today, the Georgia indictment of Donald Trump, and not just Donald Trump, but a whole bunch of other figures in the January 6 events, all this legal system, this criminal justice system, even this courthouse, I think, is well known to you.

 

So, first, tell us a little about this, maybe what you know about the district attorney, about the courthouse, what it's like — President Trump is going to be arraigned shortly in that courthouse — maybe something about President Trump's defense attorney, because I understand he just switched defense attorneys in Georgia, where you practiced for many years. Let us know what you think about this whole process that's going to occur today, and the legal community there. 

 

John G. Malcolm:  Yeah, when you mentioned that we all came up to DOJ as the Atlanta mafia, I was like, "Don't say that too loudly. Fani Willis may just try to indict us as racketeers." But, yeah, I did practice in Atlanta for a number of years. I don't know Fani Willis. I do know — he's actually a friend of mine — one of the attorneys who is advising her on Georgia RICO. He's the white guy with the horn-rimmed glasses who was standing next to her. His name is John Floyd. And I mostly was in federal court down there. 

 

But I have been in Fulton County Superior Court. It's right in the heart of the city. It's a couple of blocks away from the federal courthouse. And I don't see this case going to trial anytime soon, if it ever goes to trial. With 19 defendants, it's going to be an absolute circus. It'll be Ringling Brothers on steroids. Fani Willis is trying to get this thing for a trial date. I think she's talking about early next year. She's trying a RICO case now. It's a gang case. And it's taken months to pick a jury.  So there's just no way that this is going to get tried before the presidential election. 

 

Of course, if Trump wins, it will be on hold for a significant period of time while he serves his second term. But, if not, then it will eventually get to trial. He did switch attorneys today. He switched from Drew Findling, who's an attorney whom I know, to an attorney named Steve Sadow, whom I also know. Steve is a very, very, experienced and a very aggressive attorney. It's strange that I know one person on the prosecution side, I know people who are serving as defense counsel in this case, and I know some of the defendants too. So it's a little unusual. There's a lot to say about this indictment.

 

Prof. John C. Yoo:  Can I pause you first before you start? One question that just occurred to me was you mentioned Georgia RICO. So, we're talking about Fani Willis's charging of not just President Trump, but much of the reelection effort after the Election Day, for being a criminal conspiracy in a Georgia RICO. So I thought maybe first you could mention what is Georgia RICO?  And how is it the same or different than federal RICO?  I think a lot of people may not actually be familiar, exactly, about what RICO is. They hear it all the time.

 

John G. Malcolm:  Sure.

 

Prof. John C. Yoo:  But they don't know how it works, and how these two laws might be different. 

 

John G. Malcolm:  Sure, because they are different. So it's the Racketeer Influenced and Corrupt Organizations Act. The federal RICO was enacted in, I think it was 1970, and took effect in 1971. And it was designed to go after, essentially, organized crime families, mafia families. The idea was, if you were the Gambino family, you committed all kinds of crimes: loansharking, prostitution, gambling. You had all sorts of nefarious activities that you were engaging in, each one of which could comprise an individual conspiracy: a conspiracy to engage in loansharking, a conspiracy to engage in prostitution, a conspiracy to engage in murder for hire, whatever it was. 

 

But all of these individual conspiracies, you couldn't charge the enterprise and people at the top of the enterprise with that, unless you could directly connect them to those crimes. So the idea behind RICO was to say if you are an enterprise, and all of these activities are designed to prop up and help profit the enterprise, if you join that enterprise having some sense that all of these activities are going on, you can be charged with racketeering just by joining this group that is engaging in all of these activities. And that way, you didn't have to charge them as individual conspiracies. 

 

It's now been extended, obviously, to Mexican cartels. It's been extended to gangs. And, for the first time, it's been extended to political organizations. The Georgia RICO statute is looser, in that you don't really have to establish an enterprise. You can have sort of an association of people. You only have to prove two predicate acts. There are 47 acts that are set out in the Georgia RICO statute. You only have to establish two of them. They don't have to be continuous in any way, shape, or form.  They can be spread apart by some significant period of time, so long as they were done with the same intent or with the same purpose. 

 

So, it is easier to establish a Georgia RICO violation than it is to establish a federal RICO violation. But just because you can do something and shoehorn this into a Georgia RICO, I think it's a bad idea to do it. So why did she do it? And then, we can talk about how that enterprise works. I think she did it for two reasons. One is I think she wanted to be able to label these people — all 19 defendants, particularly Donald Trump — as racketeers, for political purposes. And RICO carries a potential minimum mandatory penalty of five years.

 

The way the statutory penalty reads, it's a minimum of five years, maximum of twenty years, a fine of the greater of either $25,000 or three times any pecuniary gain, which would be zero here, or both. So, a judge, if the judge decided to sentence any of these defendants — assuming they're convicted — to prison, it would have to be for a minimum five-year period of time. But a judge could decide to impose a fine instead of [inaudible 00:09:43].

 

Prof. John C. Yoo:  Let me follow up on two points that I think you suggested and see what you think. Again, you're the expert on Georgia criminal law. Although, as a law professor, I could pretend I'm an expert on any kind of criminal law in any state, who knows. But, in all seriousness, there's two things that you suggested, and I just wanted to press you on that, that seem unusual about this. One is, I could see using RICO against a criminal organization where that criminal organization tries to hide some of what it's doing behind perfectly legitimate activity.

 

But it sounds like, here, and maybe this is the first time ever, but maybe this has come up in Georgia before. I can't think of a federal case where this has come up before, where you basically have a legitimate organization, in fact, here, a purely First Amendment operation, something that's only designed to engage in political activity. We know that, in part, because before Election Day, the Trump election campaign is going on and spending a lot of money, raising a lot. No one thinks it's a criminal organization, at that time. So the organization continues throughout.

 

And it sounds like the district attorney says, at some point, you can now say it's a criminal organization like the mafia, like a terrorist group, like a drug cartel, even though what it had been doing throughout the whole time was legitimate. So that's one. Does Georgia law or federal RICO require us to make some kind of finding about what the inherent nature of the group is? And then, the second thing is, how connected do these criminal activities, these predicate acts, have to be?

 

So, I could easily see, for sure, if this is a white-collar crime, for example. If you're IBM and you have some employees bribe people to sell computers, IBM could legitimately say, "Look, those guys, we didn't know what they were doing. They're breaking our rules. What they did was an isolated incident. You can't say, just because two people in our 5,000-member company did two illegal things, that, therefore, IBM is a criminal organization." Is that a concern here? And has Georgia, in terms of the courts or even the federal courts, expressed any concerns that the law could be used in those two ways, in an abusive fashion?

 

John G. Malcolm:  I don't know so much about the Georgia courts, although I do think that this is sui generis. But I am very concerned. So, here, the alleged enterprise is anybody connected with the Trump campaign, including party activists, lawyers who are advising the campaign. Anybody who is connected to the Trump campaign is a member of the Gambino family, according to Fani Willis. And that conspiracy starts from, literally, the day after the election until some nine months after Joe Biden was sworn into office, according to this indictment. 

 

And literally everybody who did anything to try to help President Trump is either an indicted co-conspirator, an identified but unindicted co-conspirator, or one of the myriad of "we don't know who you are, but we know you're out there" co-conspirators. She has all three types named in the indictment. I think that is an incredibly dangerous thing to do. So, one, they're calling the organized criminal organization a political campaign. The other thing you just hit on as well, which is, at the end of the day, you either have to have the organization conspire or engage in something to achieve an illegitimate end goal, or you have to use clearly illegal means to achieve a legitimate end goal.

 

Here, the end goal was to try to get the election overturned and keep Donald Trump in power. Any candidate who contests the results of an election, either the procedure or the actual tabulation, has as an end goal to get an election overturned and to either put somebody in power or keep somebody in power. That's what political races do. And then, in terms of the means that were used to accomplish this objective, they all touch on — with a couple of exceptions that I'll talk about in just a moment — in my mind, either First Amendment protected activity, or presidential power. So, here are my two exceptions. And then, let me talk about what I mean by First Amendment activities. 

 

So, the two exceptions that I just don't know enough about: there's an allegation that there was this election poll worker in Fulton County named Ruby Freeman, and that some of these defendants tried to intimidate her and harass her to get her to change her story. I don't know anything about the facts of that witness intimidation. And the other: there's also an allegation that Dominion voting machines in Coffee County were hacked and that data was extracted to be used for some purpose. I don't know anything about that. I think it will be very difficult to connect Donald Trump to that. But, of course, as part of a conspiracy, he could conceivably be held responsible for that. 

 

The rest of this -- so what did Donald Trump -- was he aggressive? Yes. Are there people who were unhappy with what he did? Yes. But he filed lawsuits. He made statements. He called executive branch officials, up to and including the governor and the secretary of state. And he spoke to state legislators making claims that the election had been stolen, that he had evidence to do this. Granted, there were people who were telling him that that stuff was not true. But he had other people who certainly were telling him that the evidence was there, and that that stuff was true. 

 

He's got a right to file lawsuits. He's got a right to make statements. And he has a right to petition for redress of grievances to executive branch officials and the state legislatures, all of whom had a chance to do something about this. All of these are protected by the First Amendment. He is also faulted for talking to people in the Justice Department to get them to try to do something that he wanted them to do, and for doing the same thing with Vice President Pence. At the end of the day, they refused to do this.

 

But these are inferior officers within the executive branch. He can talk to them about anything he wants. They may refuse to act. He may pay a political price. In fact, I think, to some extent, he did. Mike Pence publicly refused to do what the president wanted him to do and said that he thought it was wrong. He had a meeting in the White House with Jeff Clark, who's now one of his co-defendants; the Acting Attorney General, Jeff Rosen; the Acting Deputy Attorney General Richard Donoghue. President Trump told him what it is he wanted them to do. And Jeff Rosen and Richard Donoghue said, "If you do that, we will resign, and all the rest of the leadership of the Department of Justice will resign." And President Trump decided not to go forward with his plan.

 

So, he may pay a political price for that. But there is nothing wrong with him talking to inferior officers. And here, they are suggesting that merely by talking to them and merely by telling them what he wanted them to do — he, by the way, could have possibly directed them to do those things — but merely by talking to them about what it is he wanted to do and laying out his arguments, that constitutes a criminal act. That impinges, in my opinion, very greatly on the president's constitutional prerogative. And then, of course, she has charged eight attorneys, so, taking one step back, those people who were giving him advice and who were appearing before state legislatures.

 

Prof. John C. Yoo:  John, let's pause on those guys.  I have one or two more questions and points just on Trump himself.

 

John G. Malcolm:  Sure.

 

Prof. John C. Yoo:  In some way, when I hear you describe it — and, again, you're the guy who prosecuted cases in this jurisdiction — it sounds to me like Fani Willis overcharged the case by throwing in RICO. And, in a funny way, it has overshadowed the individual criminal -- because she also charges Trump and the others with individual criminal acts. And so, if you had taken away Georgia RICO and she had just charged the individual criminal acts, I wonder what you think of those. So, for example, there is focus, of course, on Trump's conversation with Brad Raffensperger, the Secretary of State. 

 

That, to me, in some ways, is the most damning, but also, I think, on the facts, most difficult of the charges, because she does allege, and she's going to try and prove in court, that Trump tried to coerce him into basically making up fraudulent ballots. So, "Find me 110,000 extra votes," or something. If she had just charged him with that -- and Raffensperger seems to be a cooperating witness. He taped the conversation. We should all, as prosecutors, have cooperating witnesses like Brad Raffensperger. He didn't even need to be told to wear a wire. He did it on his own. 

 

But what do you make of that? What do you make of these individual charges against Trump, putting aside the Georgia RICO, which, I agree, I think, from a law teaching perspective, what I would say is the Georgia RICO statute charge has a no-limiting principle to it? It's so open-ended, it's possible for me to charge any organization, in some way, with being a Georgia RICO enterprise. But if you put that aside, maybe the court knocks that out. Maybe Trump gets to appeal on that. What about these individual charges?

 

John G. Malcolm:  Well, again, I don't know about people who allegedly intimidated Ruby Freeman, and I don't know about the Coffee incident. So there's that. So, the genesis of all of this, it seems, was this telephone conversation --

 

Prof. John C. Yoo:  Yeah.

 

John G. Malcolm:  -- with Brad Raffensperger. And the reason why I think that it would be very difficult to charge him with that, is because I actually think that virtually every report of that conversation has been skewed against President Trump, every single one of these reports. And you actually said it too. I don't fault you for it, because you read this a million times. It's that President Trump told the secretary of state, Brad Raffensperger, "You need to find me," it was 11, 500 some-odd votes.

 

Well, in a sense, Brad Raffensperger did Donald Trump a favor by recording this. Because, while it was not a perfect conversation — Donald Trump likes to say he has perfect conversations — I went back through this transcript, and what does he say?  He has four sort of references. He says, at one point, "We," meaning his legal team, "We can go through signature verification, and we'll find hundreds of thousands of signatures, if you let us do it. So he's asking Brad Raffensperger to make the records available to them. He then says, "All I want to do is this, I just want to find 11,780 votes, which is one more than we have, because we won the state." 

 

At another point he says, "I have to find 12,000 votes. And I have them, times a lot." And then, finally, what he says is he says, "Because all we have to do, Cleta" — that's Cleta Mitchell, who was one of his attorneys on the phone — "because all we have to do, Cleta, is find 11,000-plus votes." At no point during this conversation does he say, "Brad, you need to find these votes for me." And at no point does Brad Raffensperger go, "Mr. President, what you are asking me to do is improper, and I simply won't do it." So she could charge him. Certainly, the media has charged President Trump by, to my mind, misreading this conversation. But she could have done that. But certainly, RICO has all sorts of dangerous implications, going forward. 

 

Prof. John C. Yoo:  You mentioned what I think of as the procedural aspects of this. You have this sprawling indictment. As you said, it starts with President Trump claiming he won on election night and continues months and months into Biden's presidency.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  It's sprawling, in terms of numbers. A dozen, more than a dozen defendants and co-defendants including not just Trump, but his legal team, plus, I take it, well-known Republican party officials in Georgia, all the way down to some guy who started to harass an election worker. Plus, allegedly, an attorney who tried to get into a voting machine, it sounds like. And then you have lots of acts. Just if you include all those things which President Trump tried to do, not just limited to the state of Georgia, as you mentioned. It includes Washington D.C. with the Justice Department. It involves arguing with Vice President Pence. So you're got this sprawling indictment. Is there any way this could get prosecuted by Election Day of 2024?

 

John G. Malcolm:  No. There's no way. There are three indictments ahead of her. One of the reasons that Jack Smith charged him in the second indictment — not the classified documents case — he charged Trump and six unindicted co-conspirators, is to push a lot of that aside. I don't know whether he's going to get to trial on that case. I'm not sure whether any of these cases go to trial before the election. Probably the New York case will. But who knows. But he at least tried to streamline it. All of these attorneys are going to come in. Mark Meadows is going to come in. And they're going to present all kinds of defenses related to the advice that they gave. 

 

I actually think charging these attorneys is really dangerous. Charging Mark Meadows is dangerous. The overt acts related to Mark Meadows are that he called to get the telephone number for a Pennsylvania legislature. He sat in on a meeting with Donald Trump while he met with some Michigan official. He went outside Cobb County Civic Center and talked to an official while there was a recount going on inside. This is the stuff that chiefs of staff for presidents do all the time. That is their job as a chief of staff to a president. And for his trouble, he got indicted. And all of these attorneys --

 

Prof. John C. Yoo:  Let's pause there. There's two issues because, as you know, Mark Meadows, along with Jeff Clark, who you mentioned, have both asked to remove the case --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- to federal court. I won't expect Donald Trump will ask the same thing. And so, just one thought there is, as you said — I agree with you — it seems to me like Meadows is chief of staff to the president. The removal statute says you can remove to a federal court, in terms of the forum. The state's still prosecuting.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  And the state still prosecutes you under state law. It's just the idea of it is to make sure the federal forum is fair to a federal official. Maybe Jeff Clark gets that benefit too, whether you agree or disagree with what he did. I tend to disagree with what he did. But he's a federal Justice Department official. And he, in his mind, thought that he was carrying out his duty as a Justice Department official, under federal law. 

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  President Trump is the [inaudible 00:25:19] -- and then you have Rudy Guliani, John Eastman, Jenna Ellis, these attorneys, none of whom are federal officials. So, I don't think they get to remove. They may not even file. Donald Trump is interesting, because he's both the president, so he's like Mark Meadows, but he's also running for reelection. And when he runs for reelection, he's considered a private citizen. So he's more like Rudy Giuliani. I'm not sure how that works. What do you think? 

 

And then the other question I have for you, as someone who's tried down in that jurisdiction, is it is possible to split the two cases up, so that the prosecutors try Mark Meadows and Jeff Clark in federal court, and maybe Donald Trump, and then they try everybody else in state court, with the same witnesses and the same evidence, which could produce different conflicting answers between the two fora?

 

And then, how do you prevent the jurors from hearing about the one going on? How are they not going to want to see what's going on in the other case? And if you're the defendant, I would think you'd be crazy to testify in one forum, because then you'd have to testify in the other forum. So, all these complications are brought up by removal. What's your take on it? Do you think Trump could -- well, first, what's your take on, do you think it would succeed for Meadows and Clark? Could it succeed for Trump? And then, if it does, how do they actually carry it out? 

 

John G. Malcolm:  David Shafer, one of the "fake electors" -- I refer to them as "contingent electors." I'm happy to describe why. He's also seeking removal to federal court. I think it's either all going to go, or it's all going to stay. There would be a significant tactical advantage to moving it out of Fulton County Superior Court. So Fulton County Superior Court's right in the heart of Atlanta, not exactly MAGA country. If you pull it into the Northern District of Georgia, for instance, you have the possibility your case will be tried in Rome, Georgia, or Gainesville Georgia, where you draw from a far broader jury pool, including people who actually voted for Donald Trump in 2020 and may well vote for him in 2024. 

 

      You also wouldn't have cameras in the courtroom. You'd have a lot more federal oversight, and judges, presumably, who are more experienced in terms of dealing with federal constitutional issues, which are going to be all over this case.  So I think that there's a possibility that it gets removed. And I think, if it gets removed at all, it gets removed or it all stays, would be my guess.  And Fani Willis would still be in charge of the case. 

 

Although, by the way, there was a motion filed early on. She was disqualified from investigating one of what I call the "contingent electors," the current Lieutenant Governor, Burt Jones. And he's now going to be investigated by another special counsel. But there is Georgia case law that suggests that if the DA has an actual conflict of interest and her office is disqualified as to one target, that her office should be disqualified as to the entire investigation.

 

Prof. John C. Yoo:  Really? That's quite significant, actually. People haven't noticed that.

 

John G. Malcolm:  Yeah. So the superior court judge never ruled on that, just disqualified it with respect to Burt Jones. But I'm sure that issue will come up again too. I think these attorneys, they did what zealous lawyers --

 

Prof. John C. Yoo:  Let me pause you. Sorry, we're going to cut. I was just about to ask about that.

 

John G. Malcolm:  Okay.

 

Prof. John C. Yoo:  Let me set that out for people who aren't on top of this as you are. But another major procedural question. You talked about removal. The other one is attorneys and their advice. So even the special counsel, Jack Smith, with his January 6^th indictment, which we talked about in the previous episode of our revived volume two, "Johns and Johns Talk About Presidential Power," we observed that there were several attorneys who were unindicted co-conspirators, but Jack Smith did not charge them. 

 

John G. Malcolm:  Now indicted.

 

Prof. John C. Yoo:  And you and I, we went through, and we said, "Oh, that's got to be Rudy Giuliani. That's got to be John Eastman. That's got to be Jeff Clark. These are all people we know. We're still trying to figure out who's unindicted co-conspirator number six. And John and I will give out an Ed Meese poster to the person who gets that right. But even Jack Smith chose not to cross that line and charge the attorneys. Here, Fani Willis did. You said there were problems with that. What is the problem? 

 

I guess the issue is always were they really engaging in legal advice, or were they — I'm sure this is how Fani Willis will portray it — are they more like mafia lawyers, not saying "You don't want to commit murder. Here's the definition of murder. Don't do it." Instead, they're like, "Let me help you bury the body." At some point, a lawyer crosses a line into being a conspirator and actually committing a crime. What's your take on this, what Fani Willis has charged, and whether she can prove it?

 

John G. Malcolm:  Look, all of these people are facing peril in that they're not going to be popular in the jurisdiction in which they're being charged. But I think that this is an incredibly dangerous thing to do. Lawyers have an ethical obligation to zealously represent their clients, even if their clients or the causes that their clients want to raise are unpopular. Lawyers do this all the time. If there is a scintilla of evidence to support their factual assertions, they assert them. If there are any colorable legal arguments that they can make, they make them. We expect lawyers to do that. 

 

If we ended up indicting lawyers for every factual statement that they made in court that turned out to be not true, or every argument that they made in court that proved to be unavailing or perhaps even frivolous, if we indicted lawyers for that, the prisons would be filled with more lawyers than the clients that they were trying to represent.  And these are distinguished people. You may think that they acted poorly in these instances. But they've had distinguished careers. And they're not bribing witnesses. They're not changing documents and suborning perjury or anything like that.

 

They are asserting facts for which they had a good-faith basis to believe that there was some evidence to support it. And they were making legal arguments that they considered to be colorable. And I think that it is incredibly dangerous, and will have a remarkable chilling effect, not only to go after members of the bar, but particularly in an election dispute, where you need skilled attorneys. Because there are elections that are sometimes stolen. And there are elections that are sometimes overturned.

 

And you want to be sure, if you're in one of those cases, that you have a very good attorney who's in there advocating on your behalf. But if, all of a sudden, you're going to be labeled a racketeer for challenging an election and it turns out that your challenge is unavailing, that will have a dramatic chilling effect.

 

Prof. John C. Yoo:  Here are two issues which I think even I agree with you on: the First Amendment rights of the Trump campaign, a lot of what the activity is. If I were to say "here are all things knocked out by the First Amendment. Here are two things that are still left that I wonder about," I think everything you said might be true. Say, for example, John Eastman, who's giving this advice. And, full disclosure, I'm friends with John. And I think I'm going to be called to testify at his bar proceedings as an expert. And I've written a Law Review article that agrees with much of his legal analysis as set.

 

But I really disagree with him on the facts. I don't think there was any finding of voter fraud that I thought could change the election. But John's giving his legal advice. He's writing these memos. But are they within the range of what a lawyer can advise? I think that's different than, say, Rudy Giuliani. And here's the example that was in the indictment where I think he's still vulnerable — tell me if I'm wrong —  even agreeing with your robust definition of the right to have a zealous attorney —  is he did testify before the Georgia legislature under oath. And he basically said lots of things that turned out to be untrue.

 

And now, it looks like he had no factual basis for making those statements about, for example, the indictment goes through how he said, "Well, we've got lots of examples of voter fraud." And then they ask him to produce it. He never produces it, or the stories change. Could he just be vulnerable for the equivalent of lying to Congress or committing perjury in some way? That's almost nothing to do with the First Amendment activity. He just made factual statements to the legislature in Georgia that he knew were not true. That's still remaining. 

 

And then, the other one — I really don’t know how to think about this, it strikes me as funny — is this claim that the Trump campaign wanted to get their campaign people in different states to get these electors appointed, alternate electors appointed. And, in some states, they told them, "Okay, we're just doing this in case the official electors get thrown out." But then, in theory, according to Willis, what they were really up to was just trying to get a dispute by having these alternate electors. They never intended to have them just be a backup. They wanted to use them to provoke a constitutional crisis.

 

But I'm not sure whether that fits. It sounds to me that Fani Willis thinks that's fraud of some kind. I'm not sure whether that works. I don't know Georgia law. But I also don't -- I was thinking about it. Is that really fraud to trick people into doing something politically they don't want to do? And, in fact, it's the same theory as with Pence. Basically, Fani Willis charges Trump with lying to Pence about the facts, whether there's voter fraud, to try to get Pence to use his constitutional power to suspend or reject certain electoral votes. So I came up with this hypothetical, which was, suppose they're a senator.

 

John G. Malcolm:  I'm back in law school.

 

Prof. John C. Yoo:  Yeah, yeah.  Well, no -- back, I never left.  I'm trying to get out, but I can't. 

 

John G. Malcolm:  You're telling me.

 

Prof. John C. Yoo:  So here's my hypothetical for you. Suppose you're a senator, and you don't like Brett Kavanaugh. And you've heard his testimony. And you want to get the other senators to filibuster him to stop his vote for confirmation. Suppose you just say, "I have it on authority that Brett Kavanaugh not only did the things we heard about, but he did even ten times worse." And he persuades them all to use their power to filibuster his confirmation, to use their constitutional or legal powers to do something. And that senator completely made it up, just lied. 

 

Is that not unlike what Fani Willis is accusing Trump of doing? Isn't it just something that happens in politics all the time? If that's true, can Trump really be charged for what he said with Pence? Personally, I'm glad Pence didn't listen to him. But whether he listened to him or not, that doesn't mean what Trump said was illegal. But then, does that filter all the way down to my example of, then is it really illegal?  Can we really call fraud what the Trump campaign did with these alternate electors? Sorry for the long question, the hypothetical question.

 

John G. Malcolm:  Yeah, well you threw a lot of stuff in there. With respect to Rudy Giuliani, you said he made statements — either in court or before the Georgia legislature — that he knew were not true. Well, if he knew they were not true, and you could prove that he knew he was lying, and he was under oath, then that could subject him to perjury. But even if you suspect that something is not true but you have some evidence, or other people have told you that it's true, or you have something that you can hang your hat on, even if it's just a little bit, then that's not perjury. And frankly, if you started charging — well, you had your example of the senator — if you started charging politicians for lying, you'd clean out Congress. 

 

      With respect to the so-called contingent electors, I don't think it would necessarily make a difference whether they were signing these certificates hoping to prevail in litigation or whether they were hoping to persuade state legislatures to hold special sessions and recall the certifications for the Biden electors. I think that they were there to provide a remedy if Donald Trump prevailed in some form or fashion.

 

Now, these are party activists. And, generally, we want to encourage party activists. We want people to be involved in the political process. They were not hiding what they were doing. There was a pending lawsuit in Georgia on December 14, 2020, when these electors all met in the Georgia dome, the state capitol. In fact, David Shafer, the Chairman of the Republican Party at the time, had asked the Georgia Supreme Court to expedite consideration of the lawsuit so that it could be decided by December 14. But the Georgia Supreme Court declined to do that and said the matter will go and take its normal course.

 

So, had they not shown up that day, on December 14, and had Donald Trump been successful, which he ultimately wasn't, in his litigation, he would have been left remediless, because there would have been no slate of electors to vote for him. He wasn't going and signing the name of some Biden elector. They weren't hiding what they were doing. This is very much analogous to what happened in Hawaii in 1960. So, in 1960, the election took place. A Republican actually won in Hawaii in 1960, something that would never happen today. But Richard Nixon was declared the winner on election night.

 

The Kennedy campaign filed a lawsuit contesting this. The judge decided that it was close enough that there ought to be a recount, but the recount was not going to be completed by the statutory date that the electors had to meet. So both Kennedy electors and Nixon electors showed up at the Hawaii capital that day and did exactly what these people did in Georgia in 2020. And so the Nixon electors were certified and sent on.

 

What happened, though, is that Kennedy actually ended up prevailing. And so, the governor recalled the certified electors for Nixon, certified the electors for Kennedy. And it was actually Nixon who opened them up in the well of the senate and counted them. But, according to Fani Willis's theory, if the recount had failed, then the people who showed up and voted for Kennedy that day, people in the Kennedy campaign, all the Kennedy lawyers who advised him to show up at the capital that day, they'd all be racketeers. 

 

By the same token, in 2016, when Trump beat Hillary Clinton, the Clinton people were running around, "He's an illegitimate president. He colluded with Russia," all of this stuff. And people actually contacted the Trump electors and urged them to become faithless electors and to vote for Clinton. Nobody thought to call them racketeers trying to overturn the results of a legitimate election, disenfranchise all of the people who voted for Donald Trump. But that is that theory that we are working with, with both Jack Smith and Fani Willis. 

 

Prof. John C. Yoo:  So I think we're almost at the end before we turn it over to questions. Just let me add one thought. Again, I think John's done a wonderful job explaining the setting, the law, the practice, the legal issues in this particular case. Gosh, I think, of course, one aspect: the media and legal attention to this case is enormous. Because, in my mind, a lot of people are saying, "This is what Jack Smith should have charged." At least there's somebody who said, "Okay, I'm really going after the whole ball of wax, I'm charging Trump, basically, with trying to stop the peaceful transfer of power."

 

It makes you actually think, "What the hell is Jack Smith up to, charging white collar fraud and obstruction of Congress?" And then this ballot stuffing charge, which I think most people think is not going to survive on appeal. Why doesn't Jack Smith charge this? At the same time, it seems to me, just laying on my own commentary on top of John's, the primary defect is this is "throw everything at the wall, see what sticks." There is really no theory, it seems to me, of why this is a criminal enterprise that's set out in the indictment. I think the DA just put every fact there was in there, in hopes at trial there'll be something that really emerges.

 

But also, by doing that, you guarantee years of appeals, endless litigation. The First Amendment issues themselves, I could see going to the Supreme Court. They're so unprecedented. To charge a political campaign, not just, like, dogcatcher, but for the presidency, by one of the major parties, as being a criminal enterprise. How could the Supreme Court not have to weigh in on that? Because, if it goes forward, that's a serious, I think, limitation on free speech in political campaigns.

 

John G. Malcolm:  Let me add one other thing, if I may --

 

Prof. John C. Yoo:  Go ahead, John.

 

John G. Malcolm:  -- which is that there's another danger that I just want to touch upon quickly, which is that both Alvin Bragg and Fani Willis are locally elected district attorneys. In some sense, they've already gotten what they wanted. They have done what their constituents wanted, which was to indict a president or former president who is very unpopular in their jurisdiction. So, Alvin Bragg, everybody was talking about how he's this rogue prosecutor who's not charging certain offenses and reducing felonies down to misdemeanors.

 

And here he is upcharging misdemeanors to felonies. And so, no one is talking anymore about all of his misbehavior for his prosecution policies. So he's gotten that monkey off of his back. And Fani Willis has essentially already ended any potential challenge to her reelection effort in November of 2024. She's now going to be so popular in Fulton County that she's going to win overwhelmingly. But you know what? There are about 2500 DAs across the country. And they don't all come from blue cities and blue states. And I can imagine, now that you cross this Rubicon, that there are going to be some DAs in red counties, in red states, who might sit there and look at the Bidens and say, "Huh, let's see if we can find a connection to our jurisdiction, and maybe we ought to indict him here." 

 

Prof. John C. Yoo:  Sorry Emily. One more point and the we'll turn to questions, because John promised me to say -- I've written an op-ed that just appeared yesterday in Newsweek, actually, about this point, which is, once you've opened this door, some red state county DA is going to start an investigation of Hunter Biden and Joe Biden and the Biden family, based on what we already know from the Congressional hearings in the House. Is this really a path we want to go on, where we're going to rely on the criminal justice system now to fight out our political battles?

 

And just one small note: I'm really not defending either DA, but I think Fani Willis's charges are at least stronger than Alvin Bragg's. And Bragg is sort of pulling something back that allegedly happened seven years ago, and then is trying to escape the expired statute of limitations by claiming it's kind of boot-strapped in by a fraud charge on bookkeeping, really, bookkeeping, accounting, mis-accounting claims. Whereas, I do think Fani Willis, at least, is charging -- to me, the only important prosecutions are ones related to January 6.

 

I find the classified information prosecution and the Bragg hush money payments to be distractions, actually undermining the importance of January 6. But if we're going to spend prosecutorial resources, as a nation, and we are going to, as you said, cross the Rubicon — for the first time in our history, this year, we've charged a former president with any kind of crime — it ought to be for trying to stop the peaceful transfer of power, despite, I agree with John, the many problems these prosecutions have. Emily.

 

Emily Manning:  Well, thank you both for this very helpful overview. We'll now turn to audience questions. So, if you have a question, please enter it into the Q&A function at the bottom of your screen. And we'll now go to the first question from the audience. "Is it possible that the judge could dismiss the indictment before trial on the basis that the facts asserted in the indictment do not satisfy the requirements of the Georgia RICO statute?"

 

Prof. John C. Yoo:  That's the specialist's question.

 

John G. Malcolm:  I suppose so. I think it would be more on the constitutional arguments. She cited the various code sections. She's charged, for instance, forgery. I don't think that David Shafer and the other two contingent electors signed anybody else's name other than their own. So, yes, I suppose there will be some examination of the facts, and I think that a lot of this indictment may end up getting tossed. But we'll have to see.

 

Prof. John C. Yoo:  I guess my small point is — and John would know this better — trial judges, I think, generally, if there's some kind of legal challenge like that, often want to say, "Let's see how the case goes." Because if the defendant gets acquitted, then you don't need to make some kind of landmark constitutional decision. And so, I could see a trial judge who's relatively low-profile and young, just saying, "Let's see what happens with the trial, unless there's one legal issue which would really take care of most of the case." And that might be, as John said, is the campaign itself protected by the First Amendment? Or are most of the acts protected by the First Amendment? Can you wrap that all into one clean issue that could go up on interlocutory appeal?

 

Emily Manning:  A member of our audience is asking if it would be reasonable to assume, under a reading of the Fourteenth Amendment of the Constitution, that President Trump might be, in fact, ineligible to serve another term? And do you foresee this question as something that might be studied by the Supreme Court before the election?

 

Prof. John C. Yoo:  Let me answer that one first. I'm working on a piece about that right now, actually, with my coauthor Robert Delahunty, for the Federalist. And so, this is a theory that was first raised back during the impeachment, the second impeachment, when people were asking, "If the Senate were to convict Trump, could they disqualify him from office in the future?" And then, two high, prominent legal scholars who I respect, Baude and Paulsen, have posted this academic paper saying Trump is disqualified because of his actions on January 6, because he's an insurrectionist.

 

So, I half agree with them, and half disagree. So, I agree with their main substantive point, which is that the Fourteenth Amendment contains a clause that says people who are part of the insurrection are disqualified from holding further offices. This is Clause 3 of the Fourteenth Amendment. I don't know if we want to read it, but it says — here we go — "No person shall be senator, representative of Congress, or elected for president or vice president, hold any office, civil or military, under the United States, under any state, who, having previously taken an oath as a member of Congress or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies themselves."

 

It's not just Trump, it's anyone who helped Trump, if he, indeed, committed insurrection. And it says, "But Congress may, by a vote of 2/3 of each house, remove such disability." So, I agree with this theory that this clause is still in effect. It's not limited to the Civil War. It's not limited to former Confederates. I disagree with the second part — what I would think of, you could say, as the procedural part of their reading — which is, is Trump already an insurrectionist? And then, everybody can act towards him as if he were an insurrectionist?

 

Could a county clerk, running the election just in their small part of the world, say, "I'm removing Trump from the ballot, because he's an insurrectionist"? I think that's the problem. It seems to me that you just -- not everybody can just run around and say, "I believe this person, and that person's an insurrectionist." I think he should have some kind of finding by some branch of the federal government. It could be a court in, say, a proceeding.  For example, a criminal trial. It could be Congress, and an impeachment. Or Congress could pass a law, saying "Here's a list of the people we think have committed insurrection on January 6." It could even be the executive. The executive could arrest President Trump and then he would have the right of writ of habeas corpus and challenge the detention. And you could see, the courts would, again, have their say.

 

But it seems to me that what the Fourteenth Amendment would not contemplate was having officials in one state call people insurrectionists without any kind of due process, without any kind of proceeding, without really any kind of authoritative finding. Think about that in the context of the reconstruction. Even in 1880 or 1885, after the 1876 election, could Pennsylvania say, "We still think all these other people are insurrectionists, and we're going to remove them from any ballots"? I don't think that's what the Fourteenth Amendment would contemplate. 

 

John G. Malcolm:  The only thing I would add -- two very quick things to add. One is that, had he been convicted following the second impeachment, then I think the Constitution's clear that the Senate could have taken a second vote to bar him from holding future political office. But, of course, he wasn't convicted. And the other is this issue was tested in court fairly recently.

 

There was an effort to keep Marjorie Taylor Greene off of the ballot in her congressional district, claiming that she had given aid and comfort to insurrectionists. And the same with Madison Cawthorn in North Carolina. I think that Marjorie Taylor Greene's motion to dismiss was granted. The judge said, no, she couldn’t be held responsible as an insurrectionist. I think Madison Cawthorn's motion to dismiss was denied. But the case was then rendered moot when he lost his primary challenge.

 

Emily Manning:  A member of our audience is asking if Fani Willis and her subordinates may have subjected themselves to civil liability for malicious prosecution or abuse of process if the indictments are dismissed on constitutional or other grounds.

 

Prof. John C. Yoo:  Well, let's let John, since he was an assistant U.S. attorney in Georgia, no doubt had many malicious prosecution motions filed against him in his time. He knows this inside and out.

 

John G. Malcolm:  Look, that's a tough row to hoe for anybody who makes that assertion. I should note that Jim Jordan, in the House of Representatives, is already saying he's going to conduct an investigation into Fani Willis, or then some Georgia legislatures that say that they want to look into her conduct and possibly get her removed from office. I don't know whether these are going to go anywhere. 

 

Malicious prosecution is tough, because you have to be able to basically say, "You had a nefarious reason. You went after me purely for my political beliefs or race or gender or whatever. And you made up evidence, and it was totally groundless." Could one of the defendants, if they're acquitted, assert such a thing and file a civil action?  Yes, I suppose so. Whether they prevail or not, it's a tough row to hoe.

 

Prof. John C. Yoo:  To me, I don't think there are grounds. I disagree with the indictment, the way it was brought, but I think it's within reasonable range. But, if anybody, it would be the New York DA, not the Georgia DA. 

 

Emily Manning:  So, concerning the RICO statute, can you tell us about the burden of proof the prosecution will have to meet?  And is there a low bar? Some are speculating that the former president may be in trouble here.

 

John G. Malcolm:  Well, the burden of proof in all criminal cases is proof beyond a reasonable doubt. So you'd have to prove that he was part of an association, in fact, that engaged in these predicate acts that had a common intent and a common purpose. And you're not going to have to prove all the parameters of an enterprise. You're not going to have to prove continuity, all the things that they would have to prove in a federal indictment. 

 

Look, is the president in trouble? He's facing four separate indictments and 91 counts, and three of those trials are going to take place in Atlanta, Washington DC, and Manhattan. So, it's not a riskless procedure for him. I certainly wouldn't want to be facing four indictments and ninety-one counts, but he's got defenses that he's going to assert in all of these. And we'll see where it goes.

 

Emily Manning:  So, we have time for one final question. And my question is, when the named co-defendants have their day in court and are potentially found guilty on charges — let's say one co-defendant is found guilty on 90 percent of the charges they face — would that make the case against Trump stronger?

 

Prof. John C. Yoo:  John, why don't you go ahead on the last question?

 

John G. Malcolm: Well, look, I think, at the end of the day, they're going to have to show a connection. It's not just that Sydney Powell or Ken Chesebro did something to try to help the campaign. I think that they're going to have to show something about Trump knew about it, Trump approved it, Trump directed it. But the more these people are, if they are convicted of doing any of these acts, and it's all for the greater good of the campaign, and they had these communications with people higher up in the campaign, the easier it would be to link to Trump. 

 

I think that some of these things are going to be very, very difficult, like the intimidation of Ruby Freeman — let's assume that happened — if Donald Trump knew anything about who was going to talk to Ruby Freeman, or what it was that they were going to do. But any time you have a conspiracy, and the dominoes start falling, that increases your risk. But Donald Trump is going to have his day in court.

 

He's certainly going to be able to point to, as Tim Scott said last night, that he thinks that this is a rigged system, and that they are not only going after Donald Trump, but everyone who continues to support him, and that we'll be talking about Hunter Biden in a week. Compare how he's being treated with how Hunter Biden is treated. He has defenses both in court, legal defenses, and in the court of public opinion that I think will be on display.

 

Prof. John C. Yoo:  And let me put on my former Justice Department hat for a second. And John wore that hat, as well. If you look at it, the problem, from the prosecution's side, I'm reminded of the Godfather II the movie, and so, the Congressional hearing where they're trying to prove that Michael Corleone actually is the head of a criminal enterprise. And they get this guy, I can't remember, I think his name is Chi Chi. He's outrageously overplayed by the actor. But he says, "Did so-and-so tell you to push a button on this guy?" 

 

He says, "Yeah, I pushed a button on that guy." "Tell you to push the button on that guy?" "Yeah, I did that too." And then they say, "Did you ever talk directly to Michael Corleone about any of this?" He says, "Nah, nah. They got buffers, buffers in between us." And so, from the prosecution side, I totally can see where -- and John and I worked on this with terrorism after 9/11. How do you prosecute a large criminal organization where there are buffers between the head person and those in between?

 

Well, what RICO does, in a way, is that it charges the ground-level operatives with so many possible crimes, with so many long sentences, that what you really want — what I think Fani Willis really hopes to do, and I think, in a way, this is what Jack Smith hopes to do — is that someone's going to turn state's evidence, like Frankie Pentangeli in Godfather II, before his brother is brought into the audience by Michael Corleone, right? But, basically, the RICO statute -- I think, in practice, you don't see that many prosecutions that go to trial, I think, because what happens is, the lower guys, they see all those charges, they see the possible sentences, and they turn state's evidence.

 

And I bet that's what Fani Willis really hopes to do. So, in response to Emily's question, it's not that they're going to have their day in court and prove their innocence. I think Fani Willis is hoping, and I could totally see one or two of them in their own self-interest saying, "Okay, I will cooperate now with the government so I don't get any jail time, or I get minimal jail time and testify against Donald Trump." That's what I see as what's going on here. John, do you agree?

 

John G. Malcolm:  Well, I just think that, unless she's offering you, basically, you're going to get a petty offense and a finger wag that says, "Don't do it again," I have a hard time imagining a lot of these people folding. Maybe the people who went out to talk to Ruby Freeman. Maybe the company that hacked into the Dominion voting systems, if they did. But people like Mark Meadows, prominent lawyers, prominent state party officials, including an elected state senator, I think these people have reputations and they're not going to very easily take a felony conviction in order to cooperate against anybody.

 

 

Emily Manning:  Well, on behalf of The Federalist Society, thank you both for joining us for this great discussion today. We look forward to the next episode in the series, which will be hosted next Wednesday, August 30, at 12:00 p.m. Eastern, to discuss the Hunter Biden investigations. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, FedSoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in. And we are adjourned.