Editor's Note: Jennifer Rodgers is a former U.S. Attorney General, an adjunct professor of clinical law at New York University School of Law, professor of law at Columbia Law School, and legal analyst for CNN. The opinions expressed here are their own. Readmore opinionson CNN.
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As Fulton County District Attorney Fanny Willis concluded her press briefing Monday night, she said former President Donald Trump and his 18 co-defendantswould haveuntil Friday, August 25 to turn himself in for his alleged role in an attempt to annul the 2020 presidential election. All of the defendants who have made comments so far, including Trump, have denied any wrongdoing.
While Trump will likely grant Willis' request (he has voluntarily surrendered in the other three criminal cases he faces), this is probably the easiest hurdle Willis will face in his quest for justice for the people of Georgia.
For starters, Willis (and the assigned judge) will have trouble scheduling a speedy trial. While Willis has asked the judge to set a trial date of March 4, 2024, this should fit into the former president's very busy trial schedule, which is in the midst of a busy presidential campaign that will only get busier in 2024. And assuming Willis wants to keep the case intact and try all the defendants together, as he has said he intends, Trump's unavailability will dictate the whole case.
In addition, each defendant in a case extends the time it takes to go to trial (and litigate) because each defendant will have to file their own motions and raise issues in an endless array of issues. And the more attorneys involved in a case, the harder it is to find dates that fit into the schedules of all defendants and their attorneys.
It's true that 19 defendants is no start (logistically it would be almost impossible to reach that many people), but even if most of the defendants pleaded guilty, it's as much as many of them could do to put at significant risk avoid going to jail. jail. the RICO trial against several suspects is likely to take months.
Trump's team will certainly favor the idea of postponing these procedures until after the election. Like he did insideanotherfallenTrump will likely try to delay pretrial proceedings as long as possible, arguing that the campaign (and the existence of other cases) prompts a trial date to be set after the 2024 election.
This argument met with partial success in U.S. District Judge Aileen Cannon in the federal classified documents case. Sherecently establishedtrial date May 2024, earlier than Trump wanted, but six months later than the prosecutor had requested. Consideringadditional charges and chargesof the third defendant, Cannon may refer the case back.
It is not clear whether the judge assigned to the Georgia case would be willing to postpone arguments. Judge Scott McAfee of the Fulton County Superior Courtwas just a judgesince February this year, so his history with this kind of request is unknown.
I hope, as in the case of New York, where the judge isrecently rejectedFollowing such a request, Trump will attempt to take the case against him to federal court. Mark Meadows, his former chief of staff and co-defendant in the Georgia charges, has already filed such a request. This may seem like a more favorable venue for the defense because of the higher odds of a potentially more conservative jury and the possibility of thatJudge appointed by Trumpwould handle the case.
Trump may believe the odds of success in bringing the Georgia case to federal court are greater than in New York because, on the face of it, there is a stronger argument that the alleged electoral interference violations are more related to his duties as president than with his duties as president. . duties. This was the case in the New York money laundering case, where the conduct occurred even before he took office. But it's still an uphill battle because impeachment in federal court is uncommon in criminal cases and applies only in limited circumstances.
The statute that the former president is probably referring to:28 USC Section 1442(a)(1)— Provides for removal when a federal official is charged with an offense related to his official duties. This statute requires Trump to prove that he was an "officer" acting within the scope of his professional responsibilities when he campaigned against Georgian officials in his lobbying campaign.
However, at the request of the Georgian Foreign Ministerfor "finding" votesChanging the election results appears to run counter to the commitment to integrity in Georgia's 2020 race. To be more precise, ensuring electoral integrity is not the job of the president, but of the officials Trump sought to undermine.
Trump and others involved in the case could also request a change of location. The defense could look for a more favorable jury in an area of Georgia where the 2020 vote favored Trump over Biden. Fulton County, Georgia's most populous county,it was convincingfor Biden in 2020, but Trump occupied most of the state's counties.
The defense will likely argue that a significant amount of publicity about the investigation tainted the jury in liberal-leaning Fulton County, perhaps citingmediatourfrom the foreman of the grand jury as proof of that. Statements from the foremandoes not appearin violation of grand jury rules, though his designation aligns with what I hope will be the broader contention of the defendants that the great public interest in this case means they cannot receive a fair trial in Fulton County.
However, the proposal to change the location is time consuming. Publicity about these events and the case is barely confined to the Atlanta area, so moving the trial will have virtually no effect on the jury's news exposure to the case. It will be up to the judge to carefully select a jury that can judge the case fairly, despite some knowledge of the investigation. In addition, Fulton County is not only the center of more people accused of criminal conduct than anywhere else, but also in terms oflogistical and security issuesis Atlanta a better testing option than a smaller, more rural area.
In addition to these early motions, as the trial progresses, Trump and, where relevant, his co-defendants will present a long list of defenses and substantive arguments that will likely mirror those in the January 6 case filed in Washington, D.C. . . .
These likely include Trump's claim of immunity from prosecution for acts committed in his capacity as president, his perceived reliance on legal advice, his claim that the First Amendment protects him from prosecution forinterview with Georgian Foreign Minister Brad Raffenspergerand the claim of Trump and othersthe necessary intention was lackingcommitting a felony because he sincerely believes that Trump is the rightful winner of the 2020 presidential election.
None of the above claims appear viable at this time, and all are likely to be heard in other courts before being resolved in Georgia. While these decisions may not be binding on a Georgian court, they are informative as you study the issues.
If Trump and his co-defendants can handle the case before next year's election, it could improve Trump's chances of winning the election and lessen the threat these cases pose to him. As president, Trump would have the power to sink federal affairs and also have a greater ability to evade responsibility in state affairs.
While Trump would have no direct control over state affairs as president, there is a significant chance that a federal court will rule that no charges can be brought against the incumbent president and/or that Trump's request to remove him from office will be rejected. grant. prison if found guilty and sentenced to imprisonment due to the need to perform presidential duties.
In other words, while Willis's best chance of getting a conviction and seeing that conviction is to take action as soon as possible, it seems that he's decided to go the other way: charge everyone who should be charged, and the let chips roll. they fall where they can.
What we know for sure is that there will be a lot of movement in this case in the coming weeks. With 19 defendants, there will almost certainly be some who will plead guilty without cooperating, and at least a few who will cooperate with authorities, which could change the entire trajectory of the case.
Willis's decision to continue as she has—indicting anyone she wanted to indict under the statute she wanted to use—is the cleanest way for her to approach the case as a prosecutor, and I admire her for that. However, we will have to see how that decision plays out when the reality of the confrontation with the defendants in the middle of a political campaign season and three other criminal cases becomes clear to us.
This article has been updated to reflect the latest legal developments.