Fani Willis wants a trial in six months. That could be an ambitious timeline.
If you’ve paid attention to the news at all these past five months, you may have noticed that former President Donald Trump is in a bit of legal trouble. He’s now facing four indictments, ranging from campaign finance violations and improperly handling classified information to attempting to steal the 2020 election.
His most recent charges come from the state of Georgia, where Fulton County District Attorney Fani Willis has deployed a favorite law of hers: the Racketeer Influenced and Corrupt Organizations Act, or RICO. Willis has used RICO charges in two other high-profile cases: one regarding Atlanta teachers and test scores, and the other involving the Atlanta-based rap collective Young Stoner Life (YSL).
Trump has been indicted alongside 18 other co-defendants for attempting to overturn the 2020 election results in Georgia, including by trying to marshal a false slate of Georgia electors and soliciting a “violation of oath by public officer.”
David Sklansky, a professor at Stanford Law School and an expert on criminal law and criminal procedure, notes that Georgia’s RICO law covers a wider breadth than its federal counterpart. “It’s significant because it means that lots of specific Georgia crimes can be part of this indictment,” he says. “The predicate acts that are charged in this case include offenses that seem narrowly tailored precisely for circumstances like the ones that are alleged to have occurred here.”
In this episode of The Weeds, we sit down with Sklansky to discuss the history of RICO laws, how they apply to this case, and what it all could mean for the future of democracy.
Below is an excerpt of our conversation, edited for length and clarity. You can listen to The Weeds on Apple Podcasts, Spotify, Stitcher, or wherever you get podcasts.
Jonquilyn Hill
There are a lot of what-ifs right now, and that’s because this is a gigantic case with some very serious implications. But before we get into what that guilty verdict could mean, I want to talk about logistics. Are we going to see this trial happen during the primary, or are things going to get shuffled around?
David Sklansky
I will be surprised if this case can go to trial as quickly as the DA [Fani Willis] says that she wants it to go to trial. She said that she would like to see a trial date within six months. But I think with 19 defendants, that is a real stretch. In the Atlanta educators case that Willis tried under Georgia’s RICO statute, it took a year and a half to get to trial after indictment.
The YSL case is still in jury selection, which started in January. And neither of those cases have some of the additional complexities that this case has. Neither of those cases, for example, are going to involve efforts to remove the case to federal court, which this case does involve.
Mark Meadows, one of Trump’s co-defendants, has already said that he wants his case moved to federal court. Other defendants, including Trump, may join in that request, and that’s yet another layer of complication. And then we have the complication that the defendants in this case, including Trump, have legal complications elsewhere.
I think each of these cases involves its own challenges, but particularly with 19 defendants and the range of legal issues that the Georgia case raises, a trial starting six months from now strikes me as ambitious.
Jonquilyn Hill
I’m glad that you mentioned the Mark Meadows request. I want to tease out more of that. Not just the results, but what would happen to this case if it’s moved from Georgia to a federal case?
David Sklansky
I don’t think it’s clear that it would mean that a conviction would be subject to presidential pardon. In fact, I think it probably would not be subject to presidential pardon.
Jonquilyn Hill
Even if it’s moved to federal court?
David Sklansky
Yeah, because if it’s moved to the federal court, it’s still a trial for state crimes. The only thing that changes is the courtroom where the case is being held and the procedural rules that attach to the trial. So if the case gets moved to federal court, the federal rules of criminal procedure get applied, the federal rules of evidence get applied, and the jury is drawn from the area that is covered by the federal court, which would be larger Fulton County.
So one possible advantage for a defendant like Meadows in moving the case to federal court is that the jury pool will change and you might get a more favorable jury pool. Another possible advantage is that his lawyers may feel that a federal court is a friendlier venue for them because they are more familiar with federal procedures then the state prosecutors will be. I’m going to be interested to see whether Trump joins in this request, because I think it has advantages and disadvantages for Trump.
For Trump as for Meadows, it may mean a more favorable jury pool, but it may also mean that once the case gets moved, it could move along faster rather, because federal courts in general are more used to large, complicated cases. And it’s not clear that Trump would be better off with this case in federal court.
Nonetheless, if I had to bet, I would bet that his lawyers will join in the request. And the reason is that it’s yet another thing that could slow things down, at least in the near term.
Jonquilyn Hill
I think the jury pool thing is so interesting because Fulton County is bright blue. I was listening to our colleagues over at Today, Explained, and they did a wonderful episode when the news initially broke. Georgia in general has Trump fatigue.
David Sklansky
It’s hard to know how that would play out in a criminal case, but it might well mean that the larger jury pool wouldn’t wind up helping Trump or any of the other defendants because there are lots of Republicans in Georgia who seem fed up and done with the efforts to overturn their election results and meddle in their state governance.
Jonquilyn Hill
So would the possibility of moving this from Fulton County to federal court mean that the mandatory prison time changes? What does that mean as far as sentencing?
David Sklansky
It doesn’t change anything in terms of sentencing because it would mean that the procedural rules would be the federal rules and not the state rules. But the substantive law that gets applied — the criminal prohibitions, the sentencing provisions — those would all be Georgia law.
Which I know sounds odd. You would think, “Well, if it’s all Georgia law, why would you be moving it to federal court?” And it might not move to federal court precisely because generally state trials are handled in state courts.
What complicates things here is that there’s a federal statute that says that criminal defendants have a right to move their trial from state court to federal court if they have a plausible defense that centers around their federal responsibilities. And that’s what Meadows says. Meadows says, “Look, my defense is that I was just pursuing my duties and doing my job as the president’s chief of staff.” The federal district court is going to have to decide whether there really is a plausible defense here that arises from the federal position that Meadows had at the time. And if Trump joins in the request, the issue will be the same with regard to Trump.
Jonquilyn Hill
Would the federal court still be in Georgia or would it be like somewhere else?
David Sklansky
It would probably be in Georgia. I mean, you could conceivably move the trial out of the state, but that’s generally not done and I doubt it would be done here.
Jonquilyn Hill
So we’ve already established that this is one of two RICO cases out of Georgia that I have had my eye on. The other is the YSL case, and we’ve seen in that case people take plea deals. Are we going to see that in this other case?
David Sklansky
I think you will see some plea deals. With 19 defendants, the odds that all of them will decide to go to trial is low and that hasn’t happened in the other cases where Willis has charged lots of defendants. It’s just the law of numbers that when you have this many people involved; it’s unlikely that they will all decide that they want to throw in their lot with the lead defendant in the case. Particularly when even if Trump wins the election, he won’t be in a position to pardon any of them.
Jonquilyn Hill
I’m really curious about your thoughts on this case in the grand scheme of things. What is this telling us about our judicial system and our politics and the state of our democracy right now?
David Sklansky
Well, the jury is still out, you could say, because I think Donald Trump is putting American democracy to a test in all kinds of ways. One of the ways he’s putting it to the test is by pressing to see whether our legal system can deal with the kinds of blatant violations of the rule of law that Donald Trump has been engaging in for years. And we’ve never had a president who tried to throw out the results of the election in which he was voted out of office by gaming the Electoral College, by putting together fake groups of electors, by pressuring the vice president to violate his oath, and pressuring a state secretary of state to violate his oath. So it’s not clear whether our legal system and our democracy are up to these challenges. I think the indictments are good news in the sense that they suggest that our system is at least healthy enough to get these charges filed and to start moving them toward trial. But it remains to be seen whether the system will be strong enough to actually get them to trial. I think they will be, but we’ll have to see.
