The criminal indictment against former President Donald Trump in Fulton County, Georgia, comes with the implication that he’ll be booked in like a common criminal, but the arrest and the trial itself might not play out the way Fulton County District Attorney Fani Willis planned.
After unveiling a sweeping 98-page indictment against President Trump and 18 other co-defendants, Ms. Willis set an Aug. 25 deadline for the president and the other defendants to turn themselves in to the Fulton County Jail for booking. Fulton County Sheriff Pat Labat has also said he would take the former president’s mugshot as part of the process, a move not seen in the three prior criminal indictments against the former president.
In an interview with NTD News’ “Capitol Report,” William A. Jacobson, a Clinical Professor of Law and Director of the Securities Law Clinic at Cornell Law School, said the former’s president’s status as a Secret Service protectee complicates matters for the Fulton County officials seeking to play up his arrest.
“Because his Secret Service is around him all the time, you have to do it a different way,” Mr. Jacobson explained. “So presumably he will surrender, he will go in either in front of people or not in front of people into the courthouse to surrender himself, and he will be processed relatively efficiently.”
Mr. Jacobson said the Secret Service’s charge to protect the former president will likely prevent him from having to go through the process of waiting in a holding cell for several hours with other detainees, while he awaits an appearance before a judge
“I can’t imagine this is going to go the way it would be for a normal criminal case,” the law school professor continued. “And that’s why, while the Georgia authorities have made very clear they’re going to release his mug shot and they’re going to try to humiliate him, I can’t imagine it’s going to be done the way it would be done for another defendant in a case.
Fulton Case Overlaps with Federal Charges
Mr. Jacobson noted some overlap between the Fulton County indictment and one of the other indictments the former president faces—a federal case brought by special counsel Jack Smith earlier this month. On Aug. 1, Mr. Smith unveiled four charges against the former president, alleging his efforts to challenge the 2020 election results amounted to an effort to defraud the United States, to obstruct the election certification process, and to violate the right to vote and have one’s vote counted.
Ms. Willis’s indictment overlaps with Mr. Smith’s as it alleges criminality in how President Trump and members of his campaign team challenged Georgia’s 2020 general election results. Given the overlap, Mr. Jacobson said he felt the state-level indictment in Georgia is unnecessary.
“I’m not sure it’s unethical or illegal, but it is certainly questionable,” he said. “I’ve questioned from the beginning why the Georgia case was even needed, when you have a federal case charging Donald Trump with essentially the same crime, which is allegedly unlawfully interfering in the 2020 election count in the attempts to overturn it. And why have a separate state case? That’s what’s never made sense at all.”
Mr. Jacobson said it’s not unheard of for there to be both federal and state-level criminal cases stemming from the same underlying set of facts, but said in most instances such overlaps begin with a state-level case followed by a federal civil rights investigation.
“You can have two different so-called sovereigns, pursuing charges for the same crime, it’s just uncommon to have them going on at the same time with trial dates at the same time,” he explained. “And of course, there’s nothing that’s usual or common about prosecuting a former president in an election year when he’s running for election again.”
Trump’s Actions Not Clearly Illegal
Addressing the actual substance of the case itself, the Cornell legal scholar raised concerns about how Ms. Willis tied the 45th president’s actions in with the actions of other defendants. Her overarching case charges all 19 defendants with taking part in a shared criminal enterprise, under Georgia’s Racketeering Influenced Corrupt Organizations (RICO) Act.
President Trump’s part in the alleged RICO scheme entailed several alleged overt acts, including a Jan. 2, 2021, call with Georgia Secretary of State Brad Raffensperger and other Georgia election officials, wherein he laid out several claims about irregularities in the Georgia election results that Ms. Willis contends were knowingly false statements intended to induce the election officials to act unlawfully to alter the election results. Mr. Jacobson said he’s doubtful that the conversation with the Georgia election officials could really be considered criminal, and not a legitimate effort by President Trump to uncover actual election fraud.
“Did he ask the Secretary of State to do something illegal? That’s really the question,” Mr. Jacobson said. “Based on my listening of that tape, standing in isolation from everything else, I don’t think he was calling for something illegal. It’s certainly ambiguous enough that you would have to, you know, it would raise a reasonable doubt as to whether he was seeking to have something unlawful done. And I think that’s the problem here.”
Mr. Jacobson argued that while the former president’s comments to the Georgia election officials weren’t necessarily illegal, Ms. Willis had inserted it alongside some more viable criminal allegations committed by other individuals, to bolster her case against the former president.
“She has alleged some real crimes or real alleged crimes, like breaking into a computer system, impersonating a public official. But Donald Trump is not accused of having done any of those things,” Mr. Jacobson said. “What she’s trying to do is hold him liable for what other people did, which may have been criminal under a conspiracy theory where all of the people involved in the conspiracy are liable.”
Mr. Jacobson said he had expected Ms. Willis’s case to focus more closely on President Trump’s phone call with the Georgia election officials, with legal arguments centered around his comments during that call and whether those comments were a request for election officials to cheat the results on his behalf or whether those comments were an honest attempt to uncover actual election fraud.
NTD News reached out to Ms. Willis’s office for comment but did not receive a response by the time this article was published.