OPINION: This article may contain commentary which reflects the author's opinion.
A former leading federal prosecutor says that Fulton County District Attorney Fani Willis’ racketeering case against former President Donald Trump and others is a flawed case.
Andrew McCarthy, who once served as the Chief Assistant U.S. Attorney in the Southern District of New York, said in an opinion piece written for The Messenger that challenging the outcome of an election is not a criminal act and that in order an actual criminal operation must be a constant, never-ending threat.
Last week, Willis brought a comprehensive 41-count indictment against Trump and 18 co-conspirators, alleging that the defendants sought to overturn the outcome of the 2020 presidential election through actions that allegedly violated Georgia’s Racketeering Influenced and Corrupt Organizations (RICO) Act. Furthermore, the indictment accuses them of enticing an official to breach their sworn oath of office.
Though the state’s RICO law allows prosecutors to link various crimes allegedly committed by many defendants, McCarthy wrote in his piece there is “a giant hole” because of “the lack of a clear crime to which Trump and his co-defendants can plausibly be said to have agreed.”
The Daily Wire noted:
Racketeering conspiracy charges typically apply to mafia-type criminal organizations that engage in offenses you would see in an episode of “The Sopranos.” But because conspiracy charges require an agreement with two or more people to violate a criminal statute, McCarthy said that if there is no agreement about committing a crime, there is no conspiracy.
In the indictment, Willis alleges that Trump and the co-conspirators tried to keep the former president in power after the 2020 election results claimed otherwise by explicitly attempting to “change the outcome of the election in favor of Trump.” Yet trying to reverse the election results without sharing an “overarching objective” is technically not a crime, McCarthy said.
In addition, McCarthy alleges that the DA is trying to get around proving the objective by using tautology in the charges. He noted that specifically, on page 14 of the indictment, that Trump and his allies allegedly engaged in a “conspiracy to unlawfully change the outcome of the election in favor of Trump.”
“That is, the lawful objective of changing the election outcome somehow becomes unlawful because she invokes the apparently talismanic word ‘unlawful,’” McCarthy wrote. “But there is no crime of unlawfully trying to change an election outcome — not in Georgia law nor any other American law.”
“Let’s put RICO to the side for a moment and focus on conspiracy. Very simply, a conspiracy is an agreement to violate a criminal statute. It takes two to tango, so a conspiracy must minimally involve a pair of people. Beyond that, though, it can involve three people, 19 people, 100 people — any number,” he wrote “Regardless of how many people are said to be implicated, however, there is always one requirement: There must be a meeting of the minds about the crime that is the objective of the conspiracy.”
McCarthy added: “If prosecutors allege a large-scale conspiracy, various conspirators may play different roles. In a conspiracy to sell cocaine, for example, some people may handle importation; others handle sales or security, and still others, accounting and management of the cash proceeds. But what unites these role-players in a single conspiracy is the criminal objective — in our example, to sell cocaine. If there is no agreement about a crime, there is no conspiracy.”
As to the attempt to change the outcome of the election, McCarthy noted Democrats in the recent and distant past have tried to do the same thing:
That is what’s so strange about DA Willis’s indictment. She alleges that the 19 people named in her indictment are guilty of conspiracy because they agreed to try to keep Donald Trump in power as president — specifically, to “change the outcome of the election in favor of Trump.”
Maybe they shared such an aim, maybe their 19 minds met regarding that objective, but in and of itself, trying to reverse the result of an election is not a crime. You may have noticed that neither Al Gore nor Stacey Abrams was ever led away in handcuffs.
He concluded that “an agreement to do something legal — to reverse the result of an election — is not a conspiracy. And if the presumption of innocence means anything, we must presume people are innocent if the prosecutor fails to allege that they agreed to do something that was actually a crime.”
