Paras Shah: Former President Donald Trump is now facing his fourth criminal case.
On Monday, August 14, a grand jury in Atlanta indicted Trump and 18 others, including his personal attorney Rudy Giuliani and former White House chief of staff Mark Meadows, over their alleged efforts to overturn the results of the 2020 presidential election in Georgia. The indictment charges that the defendants engaged in a sweeping criminal enterprise, which involved submitting false slates of electors, pressuring state officials, breaching voting data, and perjury, among other conduct.
This is the Just Security Podcast. I’m your host, Paras Shah.
Joining the show to discuss the most recent Trump indictment, we have Ambassador Norman Eisen. Eisen is the former U.S. Ambassador to the Czech Republic and has also served as special counsel and special assistant to the president for ethics and government reform. In 2019 and 2020, Norm served as special counsel on the House Judiciary Committee majority during Trump’s impeachment proceedings and trial. He has written extensively about the Georgia indictment.
Norm, welcome to the Just Security podcast. Thanks so much for joining the show.
Norm Eisen: As a very frequent contributor to the Just Security website, I'm thrilled to be on the podcast for the first time!
Paras: I want to start by talking about the most recent Trump indictment, his fourth indictment. It's a sweeping indictment. It has — charges 19 individuals, it covers such a wide range of conduct. What do you make of the charges?
Norm: Well, I think, as I wrote for The New York Times, that they are among the most important, maybe the most important, of the pending criminal and civil cases against Donald Trump. While all of the alleged offenses or misconduct is significant, what could be more significant than attacking the legal foundation of the legitimacy of our nation and our government, the votes of the people that validate the entire enterprise?
Now, Jack Smith also has a federal election interference case, but Smith intentionally targeted his powers just on Trump. Here, you have a sweeping case that is as comprehensive as the alleged conspiracy and crimes itself, and one that covers the unique nature of the attempted coup of 2020 and early 2021, which is — it was run by national figures, including in the White House, allegedly, but it sank its tentacles down into the states, so it went from the treetops to the grassroots. And Fani Willis’s indictment captures that staggering array of defendants, of offenses. If Jack Smith's case is Hemingway lean and spare, this is Dickens rich panoply of evidence and powerful, broad use of the law.
So it'll be televised, and it's pardon insurance, because if Trump or another Republican takes office, federally, the first thing they'll do is issue pardons or tell DOJ to drop the case, or both. This case will persist. So for all those reasons, I think it deserves to share the top spot or perhaps to enjoy the top spot alone in the cases against Trump.
Paras: What do you see as the President's strongest defenses in this tree top to grassroots, Dickens-like narrative? What is he likely to argue here?
Norm: Well, he'll certainly attack the core of the case. It's a RICO case, which is just a fancy way of saying extra tough conspiracy law. And you know, you can blow up a RICO case if you say no, you're combining too many different things. He'll argue he didn't even know some of the events or the people. So there'll be a technical fight about the sufficiency of Rico. I think he'll lose.
Certainly, the familiar arguments he's been making in the public sphere will be heard here. “First Amendment speech is being prosecuted, that's forbidden by the Constitution, because it's protected by the First Amendment. I was just acting on the advice of my lawyers and I believed, genuinely believed, I had lost.” There are significant problems, just like with the RICO arguments, with each of those defenses. The First Amendment defense, you know, does not extend to a bank robber saying stick them up. You can't when you get prosecuted — he can't say, “Oh, throw out the case, because I spoke the words that come up if your words are part of a crime.” She's been careful as she charges the case, not to criminally charge with — even though she includes many of Trump's words in the thing, she doesn't say, “Oh, by, you know, that speech itself constituted a crime.” So she's been careful about that calling practice.
Number two, advice of counsel doesn't work. If you're not using counsel in good faith, or if they're your co-conspirators — a federal court has already found in a civil dispute that Trump and one of his co-conspirators, John Eastman, were engaged in criminal activity, that's by a preponderance of the evidence. This is beyond a reasonable doubt. But it's certainly relevant.
And then I would say, the issue of good faith belief is, no matter what you believe, you're not allowed to take the law into your own hands. And that's what Trump did here. I can't go into the bank and say, “But you owed me $11,780!” and just reach across the counter and take it if I lost 62 court cases, saying that, you know, I was not owed the money, no matter how fervently I believe it. So those are the defenses and they're all going to fail.
Paras: Trump is facing three other indictments in Washington, DC, New York and Florida. So how do you see the sequencing of this trial playing into those other prosecutions, and particularly given some press reporting that Fani Willis is not going to be coordinating with Jack Smith?
Norm: I think that the Fani Willis case may well end up taking longer to try. It's a big complicated case. She said she wants to try it within six months. She has to say that. But whether she actually does, I think the sequencing is going to be — Jack Smith is going to get his case in the first quarter of 2020. The federal election interference case, first quarter of 2024. Judge Alvin Bragg, that case Alvin Bragg has said — on the Manhattan 2016 election interference case, fabricating documents to cover up hush money payments, that could have cost Trump the election if the underlying conduct became known — Alvin Bragg has said he'll step aside in the interests of justice. That case could very well slip.
Then you come to the current main trial date for the Mar-a-Lago case. We'll see what the judge does there. There was a superseding indictment. That could end up being a little further out in the summer. And then this case, she's doing a RICO case now involving the YSL street gang in Fulton County. That's taken more than six months for jury selection alone. So this case may not be a fast moving one. And that's okay, because as I said, part of its utility is it's the insurance against a pardon or federal cases being dropped.
Paras: Another question here around timing is severance of trials. So some of the defendants here have very discrete parts in this larger conspiracy. Do they have an incentive to sever their trials from those of the larger co-conspirators, and if there is severance that happens, how does that affect the dynamics?
Norm: The defendants do have the power to seek severance, prosecutors typically fight it. The severance, of course, means chopping the case up. So 19 defendants in the most extreme case, you get 19 trials. That won't happen here. Prosecutors hate it because they have much more limited resources than folks realize. They don't want to have to try the same case 19 times, but after you've tried your case even once, the other side knows your evidence, so that 18th case gets a little better, because the witnesses are there and they forget things. Time goes by, they contradict themselves, you have more time to prepare the cross examination, then the 17th case is a little worse for prosecutors, and so on down the line. They're gonna resist. You know, 19 is a tough number. It's a tough number of defendants. It’s been known to be done. Bottom line, I would not be surprised to see the defendants kind of figure out a severance strategy filed some motions together, and to see the court separate this out into more than one trial. But we'll see.
Paras: It's not so often on the Just Security podcast that we get to talk about one of my favorite classes from 1L in law school, civil procedure, but there is — there is a question here around whether these defendants can remove this case to federal court. And just to remind listeners, right now, this case is in state court, it's in Georgia state court, it's under Georgia law. But Mark Meadows at least has already filed a motion seeking to remove this to federal court, raising an argument that he has a potential defense under federal law, that the conduct that's being charged here was undertaken in his capacity as White House Chief of Staff and that he might have a federal defense. How do you see the issue of removal playing out, and what are the implications? Why would it matter if it's removed to federal court?
Norm: Removal in criminal cases is a statutory vehicle. In order to remove the case, cutting through the intricate civil procedure doctrine, Meadows is going to have to show that the acts within that are alleged in the indictment were within his official responsibilities, because removal is available. The idea of removal is you do it to protect federal officers from getting abused by local prosecutors whom they may be investigating, or have various distinct interests. They’ll be safer in federal court, but it's federal officer removal. If Mark Meadows was there, as I believe, based on his political activities, that's not within the outer perimeter, the test under the Supreme Court case Nixon v. Fitzgerald, are the acts within the outer perimeter of the official’s government responsibilities?
And there is a very important 11th Circuit case where this will be decided, could go to the Supreme Court, of course, v. Martin. If the officer acts out of any, any personal interest, malice, actual criminal intent or any reason other than to do duty, there's no entitlement to the removal. So it can't be that participating in an attempted coup is part of even the outer perimeter of a White House Chief of Staff's presidential duties. So I think that this removal petition is doomed to fail. That opinion is somewhat informed by the lengthy analysis of removal in my Brookings model prosecution memo on the Georgia case, entitled Fulton County, Georgia’s Trump Investigation for anyone who wants to read dozens of pages of removal doctrine. My co-authors made me vivisect the chapter on removal and put half of it in an appendix because it just was so law nerd. And then, the other good authority on this is Judge Hellerstein in the Southern District of New York, had to deal with the removal petition for that 2016 election interference case. And the judge applied the test and said, “It doesn't work for this kind of activity.” That was election interference. This is even worse election interference. I don't think it's going to work here either.
Paras: I'm a giant civil procedure nerd, as I said, so I'll very happily read your appendix. Is there anything that we haven't touched on yet that you'd like to discuss?
Norm: No, I think we've surveyed the waterfront.
Paras: Norm, it's great to have you on the podcast. We'll look forward to your pieces on the Just Security site. Thanks for joining the show.
Norm: Thanks for having me.
Paras: This episode was hosted by me, Paras Shah. It was edited and produced by Tiffany Chang, Michelle Eigenheer, Allison Mollenkamp, and Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to Ambassador Norm Eisen. You can read all of Just Security’s coverage of the Trump indictments, including Norm’s analysis of the Georgia case, on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.