Trump Indictments, Part 5: Election (Georgia)

The fourth (and, so far, final) of former President Donald Trump’s (R) indictments was issued by a Georgia grand jury on August 14, 2023. Trump appeared for booking in Fulton County, Georgia, on August 24 and filed a “not guilty” plea in writing on August 31.

The indictment lists forty-one charges against nineteen defendants—Trump and eighteen others connected with him or his 2020 presidential campaign. Thirteen charges are directed at Trump. Six charges alleging “solicitation of violation of oath by public officer,” three of which were directed at Trump, were dismissed on March 13, 2024, due to vagueness. Four defendants—Scott Hall, Sidney Powell, Kenneth Chesebro, and Jenna Ellis—pleaded guilty under plea agreements that reduced the number or severity of charges and limited their sentences to probation and fines with no jail time.

Prosecutors allege that the defendants conspired with one another and committed various other crimes to subvert the results of the 2020 U.S. presidential election in Georgia. The charges against Trump include racketeering (i.e., RICO violations); conspiracies to impersonate, commit forgery, make false statements, and file false documents; filing a false document; and making false statements.

This article is based on the information that is publicly available at the time of its writing. It may need to be revised if new information becomes available. Any substantial changes will be described in the “Updates” section near the end of this post.

• Indictment (PDF)

Background

The charges in this indictment relate to crimes Trump allegedly committed in Georgia in the aftermath of his 2020 U.S. presidential election loss. Trump is also subject to a similar federal indictment, which I have already reviewed. The two cases share much of the same background and context.

Rather than repeating everything here (and needlessly padding my word count), I recommend that you read the “Background” section of my analysis of the federal case. It includes a discussion of key topics relating to these charges—the 2016 election, the Trump presidency, the 2020 election, and the crime of conspiracy in the federal context. (That article also includes analysis of the January 6, 2021, riot at the U.S. Capitol, which is not relevant to the Georgia case.)

Trump lost Georgia, and the state’s sixteen electors were awarded to now-President Joe Biden (D). The margin was only 11,779 votes—one quarter of one percent of the nearly five million ballots cast in the state. Trump claims he won Georgia, but there is no evidence of fraud on a large enough scale to have changed the certified result.

As I said in my analysis of the federal election case, “Trump and his supporters can assert that the election was stolen all they want, but nobody should believe them unless they can show us proof. Not just innuendos and isolated oddities . . . proof. They haven’t.”

On Conspiracy (in Georgia)

I have written about “conspiracy” and the related U.S. federal laws and court precedents in my analyses of Trump’s federal conspiracy charges. The relevant sections are in Documents (Federal), Conspiracy, Analysis (in relation to count 33) and Election (Federal), Background, On Conspiracy (in relation to counts 1, 2, and 4).

As a general principle, “conspiracy” is a separate crime from the crimes the participants are conspiring to commit. “For example, one who conspires with another to commit burglary and in fact commits the burglary can be charged with both conspiracy to commit burglary and burglary.” Once a conspiracy exists, “conspirators are liable for all crimes committed within the course or scope of the conspiracy” (Batten 2010, “conspiracy”).

The federal statutes and precedents are too vague. “It does not matter whether the crime itself is ever performed or attempted,” or “if one participant has no intention” to commit it, “as long as the participant plans or works with at least one other person in support of the supposed future criminal act” (Sheppard 2012, “conspiracy”). It is left undefined where the legal line might fall between idle talk and criminal conspiracy. The federal statutes used against Trump, along with many others, must be considered void for vagueness. They do not provide “the kind of ordinary notice that will enable ordinary people to understand what conduct it prohibits” (Sheppard 2012, “vagueness doctrine”).

As I concluded in the “On Conspiracy” section of my review of Trump’s federal election charges, “planning a crime simply cannot be a crime. . . . If conspirators never move forward with the plot, no harm has been done and there is no reason to charge anybody with anything. If they do go ahead with it, they should be charged with whatever crimes they end up committing (or attempting to commit). The only valid purpose for ‘conspiracy’ laws is to ensure that all members of a conspiracy are held accountable for crimes committed in furtherance of it.”

The federal conspiracy charges against Trump all fail basic tests of moral and constitutional validity:

• Count 33 in the federal documents case and count 2 in the federal election case fail because the charges are superfluous; Trump faces charges for actually committing the alleged crimes. It is improper (regardless of bad precedent) to charge someone with committing and conspiring to commit the same crime.
• Counts 1 and 4 in the federal election case fail because prosecutors have not described what actual crimes the alleged conspirators intended to commit.

In Georgia, the conspiracy statute is much clearer, and the courts have adopted more proper interpretations into case law. The key differences between the federal and Georgia conspiracy laws are:

• The Georgia statute—Code of Georgia § 16-4-8—requires that at least one conspirator commits an “overt act to effect the object of the conspiracy.” An “overt act” is understood as being something concrete—not idle discussion. In Bradford v. State (2009; no relation), the court described it as meaning “an open or manifest act made in furtherance of the conspiracy” (WCGA 2023, § 16-4-8, “overt acts”). The federal statutes either don’t have this requirement at all, or have one so vague (like “an act”) that it’s meaningless.
• The statute describes a “conspiracy to commit a crime” (emphasis added). This has been interpreted by state courts—correctly—as requiring a nexus to a clearly-defined crime. Charges must be made “in conjunction with a second Criminal Code section that describes the substantive crime involved in the criminal scheme.” Conviction is not warranted “if the evidence does not show a scheme that could have led to a conviction for the underlying offense” (Zakolski 2023, “18 Ga. Jur. § 4:12”).
• Georgia does not allow double charging with conspiracy and the underlying crime. If a crime is planned but never committed or attempted, conspirators are charged with conspiracy. If the crime was committed or attempted, the perpetrators are charged with the crime, and other conspirators are charged with conspiracy. Conspiracy is “a separate crime only in cases where [the] crime . . . had not in fact been committed” by the defendant (OCGA 2024, § 16-4-8, “when conspiracy itself is a separate crime”).

These differences render the Georgia version of “conspiracy” sufficiently clear; it should not be considered void for vagueness (though there is still room for improvement). Therefore, the Georgia conspiracy charges cannot be presumed morally and constitutionally invalid like the federal conspiracy charges are. They must be analyzed on their merits.

On Jurisdiction

We must also consider the extent of Georgia state court jurisdiction.

In the New York business records case, the alleged crimes occurred in the state of New York. Trump was likely in New York when many of them occurred, and was acting in an official capacity as an officer of a New York company even when he was elsewhere. On that basis, the New York courts have a reasonable claim of jurisdiction. In the federal documents and federal election cases, the alleged crimes occurred in the United States, and Trump was almost certainly in the U.S. at the time. The federal courts also clearly have jurisdiction.

This case in Georgia is less clear. “Jurisdiction” in this context refers to a court’s “power to decide a case or issue a decree,” which requires a court to have “jurisdiction of the subject matter and jurisdiction over persons” (Garner 2019, “jurisdiction”). Subject matter jurisdiction refers to “authority over the particular claim or controversy,” and personal jurisdiction refers to “authority . . . over the parties in the case” (Batten 2010, “jurisdiction”).

Each of the counts directed at Trump under this indictment fall under Georgia state courts’ subject matter jurisdiction—the conspirators allegedly planned or committed crimes in Georgia, and the whole thing related to the election in Georgia. But Trump was not in Georgia when any of this happened. The personal jurisdiction of Georgia’s state courts over Trump must be established some other way.

Generally, you are not bound by a state’s laws when you aren’t in the state. When I’m home in Virginia, I don’t have to follow Nevada’s laws. There are, however, exceptions to this rule, such as when “the persons have manifested some contact with the state” (Batten 2010, “personal jurisdiction”).

The related case law comes from the U.S. Supreme Court’s decision in “International Shoe Co. v. Washington” (1945). The court found that states may exercise personal jurisdiction over nonresidents if they “meet the basic requirements of fairness” and can establish “at least a substantial connection between the defendant and the forum jurisdiction, demonstrated by at least minimum contacts between the defendant and the forum that were purposefully directed toward the specific forum . . . ” (Sheppard 2012, “in personam jurisdiction”).

Code of Georgia, Title 17, Chapter 2, Section 1 defines Georgia’s position on jurisdiction. Subsections (b)(1) and (b)(2) likely apply in this case: “ . . . a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if: (1) The crime is committed either wholly or partly within the state; (2) The conduct outside the state constitutes an attempt to commit a crime within the state; . . . ”

This statute is reasonably consistent with general principles and federal precedents, and the alleged crimes clearly included a “substantial connection” and “at least minimum contacts between the defendant and the forum that were purposefully directed toward the specific forum.” Thus, Trump is properly subject to the personal jurisdiction of the Georgia courts in relation to the allegations contained in this indictment.

Summary of Charges

As described in the introduction, this is a complex indictment. It lists forty-one charges against nineteen defendants. Some of the counts are directed at single individuals, and others at groups. The first count, which alleges racketeering, lists the whole group of nineteen as co-defendants.

In this article, I am only analyzing the counts directed at Trump. Addressing all the counts against all the defendants would just take too much time. I will, however, briefly describe all the counts in this section.

Defendants

The following individuals are named as defendants. For the purposes of this article, wherever a list of defendants appears I will list Trump first, followed by other defendants in alphabetical order by last name.

Charges that have been resolved (i.e., dropped or otherwise concluded) are marked with a strikethrough effect. Defendants who no longer face active charges are marked the same way. Explanations of how they were resolved are in the “Resolved Before Trial” subsection of the “Counts” section.

• Donald Trump, former President of the United States
  • Counts 1, 5, 9, 11, 13, 15, 17, 19, 27, 28, 29, 38, and 39
• Robert Cheeley, lawyer
  • Counts 1, 9, 11, 13, 15, 17, 19, 23, 26, and 41
• Kenneth Chesebro, lawyer
  • Counts 1, 9, 11, 13, 15, 17, and 19
• Jeffrey Clark, lawyer and former Department of Justice official
  • Counts 1 and 22
• John Eastman, lawyer
  • Counts 1, 2, 9, 11, 13, 15, 17, 19, and 27
• Jenna Ellis, lawyer
  • Counts 1 and 2
• Harrisson Floyd, former Trump campaign staffer
  • Counts 1, 30, and 31
• Rudy Guiliani, lawyer and former Mayor of New York City
  • Counts 1, 2, 3, 6, 7, 9, 11, 13, 15, 17, 19, 23, and 24
• Scott Hall, bail bondsman
  • Counts 1, 32, 33, 34, 35, 36, and 37
• Misty Hampton, former elections director for Coffee County, Georgia
  • Counts 1, 32, 33, 34, 35, 36, and 37
• Trevian Kutti, publicist
  • Counts 1, 30, and 31
• Cathy Latham, former chairman of the Coffee County, Georgia, Republican Party
  • Counts 1, 8, 10, 12, 14, 32, 33, 34, 35, 36, and 37
• Steve Lee, pastor
  • Counts 1, 20, 21, 30, and 31
• Mark Meadows, former White House Chief of Staff
  • Counts 1 and 28
• Sidney Powell, lawyer
  • Counts 1, 32, 33, 34, 35, 36, and 37
• Michael Roman, former Trump campaign staffer
  • Counts 1, 9, 11, 13, 15, 17, and 19
• David Shafer, former chairman of the Georgia Republican Party
  • Counts 1, 8, 10, 12, 14, 16, 18, and 40
• Ray Smith III, lawyer
  • Counts 1, 2, 4, 6, 9, 11, 13, 15, 17, 19, 23, and 25
• Shawn Still, Georgia Senator for the 48th District
  • Counts 1, 8, 10, 12, 14, 16, and 18

The indictment describes thirty more “unindicted co-conspirators” that are identified only as “Individual 1 through Individual 30.” It also claims (without evidence) that “others known and unknown to the Grand Jury” were involved.

Counts

This section provides a listing of the counts in the indictment. I have organized them into logical groups: “Lying and Influence,” “Attempted Lying and Influence,” “Conspiracies,” and “Racketeering,” in that order. My detailed review of the charges directed at Trump will follow the same pattern, which has little relation to the order of counts in the indictment.

Charges that have been resolved (i.e., dropped or otherwise concluded) are marked with a strikethrough effect. Defendants who no longer face active charges are marked the same way. How these counts were resolved is described in the “Resolved Before Trial” subsection below.

Against Trump

Following are the thirteen charges against Trump alone, or Trump with co-defendants, which will be subject to further analysis in this article:

• Lying and Influence
  • “Filing false documents”
    • Count 27 – Trump and Eastman
  • “False statements and writings”
    • Count 29 – Trump
    • Count 39 – Trump
  • “Solicitation of violation of oath by public officer” (dismissed)
    • Count 5 – Trump
    • Count 28 – Trump and Meadows
    • Count 38 – Trump
• Conspiracies
  • “Conspiracy to commit impersonating a public officer”
    • Count 9 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
  • “Conspiracy to commit forgery in the first degree”
    • Count 11 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
    • Count 17 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
  • “Conspiracy to commit false statements and writings”
    • Count 13 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
    • Count 19 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
  • “Conspiracy to commit filing false documents”
    • Count 15 – Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith
• Racketeering
  • “Violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act”
    • Count 1 – Trump, Cheeley, Chesebro, Clark, Eastman, Ellis, Floyd, Giuliani, Hall, Hampton, Kutti, Latham, Lee, Meadows, Powell, Roman, Shafer, Smith, and Still

Against Others

Following are the remaining twenty-eight counts, which are directed at defendants other than Trump. They are included for completeness and will not be subject to further in-depth review:

• Lying and Influence
  • “Perjury”
    • Count 41 – Cheeley
  • “Forgery in the first degree”
    • Count 10 – Latham, Shafer, and Still
    • Count 16 – Shafer and Still
  • “Influencing witnesses”
    • Count 31 – Floyd, Kutti, and Lee
  • “Impersonating a public officer”
    • Count 8 – Latham, Shafer, and Still
  • “False statements and writings”
    • Count 3 – Giuliani
    • Count 4 – Smith
    • Count 7 – Giuliani
    • Count 12 – Latham, Shafer, and Still
    • Count 18 – Shafer and Still
    • Count 24 – Giuliani
    • Count 25 – Smith
    • Count 26 – Cheeley
    • Count 40 – Shafer
  • “Solicitation of violation of oath by public officer” (dismissed)
    • Count 2 – Eastman, Ellis, Giuliani, and Smith
    • Count 6 – Giuliani and Smith
    • Count 23 – Cheeley, Giuliani, and Smith
• Attempted Lying and Influence
  • “Criminal attempt to commit influencing witnesses”
    • Count 20 – Lee
    • Count 21 – Lee
  • “Criminal attempt to commit filing false documents”
    • Count 14 – Latham, Shafer, and Still
    • Count 22 – Clark
• Conspiracies
  • “Conspiracy to commit solicitation of false statements and writings”
    • Count 30 – Floyd, Kutti, and Lee
  • “Conspiracy to commit election fraud”
    • Count 32 – Hall, Hampton, Latham, and Powell
    • Count 33 – Hall, Hampton, Latham, and Powell
  • “Conspiracy to commit computer theft”
    • Count 34 – Hall, Hampton, Latham, and Powell
  • “Conspiracy to commit computer trespass”
    • Count 35 – Hall, Hampton, Latham, and Powell
  • “Conspiracy to commit computer invasion of privacy”
    • Count 36 – Hall, Hampton, Latham, and Powell
  • “Conspiracy to defraud the state”
    • Count 37 – Hall, Hampton, Latham, and Powell

Resolved Before Trial

Some counts were resolved (completely or partially) through dismissal or plea agreements before going to trial. These are marked with the strikethrough effect in the lists above and are briefly described below.

• September 29, 2023: Charges against Scott Hall (counts 1, 32, 33, 34, 35, 36, and 37) were dropped as part of a plea agreement but remain active against other defendants. Hall pleaded guilty to five misdemeanor counts of conspiracy to commit intentional interference with the performance of election duties. He was sentenced to probation, fine, and community service.
• October 19, 2023: Charges against Sidney Powell (counts 1, 32, 33, 34, 35, 36, and 37) were dropped as part of a plea agreement but remain active against other defendants. Powell pleaded guilty to six misdemeanor counts of conspiracy to commit intentional interference with the performance of election duties. She was sentenced to probation, fine, and restitution.
• October 20, 2023: Charges against Kenneth Chesebro (counts 1, 9, 11, 13, 15, 17, and 19) were dropped as part of a plea agreement but remain active against other defendants. Chesebro pleaded guilty to one felony count of filing false documents. He was sentenced to probation, restitution, and community service.
• October 24, 2023: Charges against Jenna Ellis (counts 1 and 2) were dropped as part of a plea agreement but remain active against other defendants. Ellis pleaded guilty to one felony count of aiding and abetting false statements and writings. She was sentenced to probation, restitution, and community service.
• March 13, 2024: Charges of “solicitation of violation of oath by public officer” (counts 2, 5, 6, 23, 28, and 38) against all defendants were dismissed due to vagueness by Fulton County Superior Court Judge Scott McAfee.

Alleged Offenses

The specific offenses that Trump (and others) are alleged to have committed are described in this section. These include alleged violations of Georgia’s RICO act, assembling fake electors, making a false court filing, and pressuring Georgia officials to violate the law and their oaths of office.

RICO Violation

Prosecutors allege under count 1, which accounts for more than half of the indictment, that Trump and the eighteen co-defendants violated the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act by “knowingly and willfully” engaging in a “conspiracy to unlawfully change the outcome of the election [in Georgia] in favor of Trump” between November 4, 2020, and September 15, 2022.

Because the alleged crimes under other counts are presented as evidence of the RICO violation, I will address them before addressing the RICO claim in the detailed review of the counts later in this article. But here, where I am briefly describing the alleged offenses, I will follow the general outline of the indictment and begin with the RICO charge.

Manner and Methods

The coordinated effort to “change the outcome” of the election is described as a “criminal organization” that “functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise.” Eight alleged examples of the “manner and methods used . . . to further the goals of the enterprise” are listed:

1. They “made false statements concerning fraud in the . . . presidential election . . . to persuade Georgia legislators to reject lawful electoral votes cast by the duly elected and qualified presidential electors from Georgia” and “corruptly solicited Georgia legislators instead to unlawfully appoint their own presidential electors for the purpose of casting electoral votes for Donald Trump.”
2. They “made false statements . . . to Georgia officials” and “corruptly solicited Georgia officials . . . to violate their oaths to the Georgia Constitution and to the United States Constitution by unlawfully changing the outcome of the . . . presidential election in Georgia in favor of Donald Trump.”
3. They “created false Electoral College documents and recruited individuals to convene and cast false Electoral College votes at the Georgia State Capitol . . . ” and transmitted those votes to various federal officials, including the President of the U.S. Senate, with the intent to “disrupt and delay the joint session of Congress on January 6, 2021.”
4. They “falsely accused Fulton County election worker Ruby Freeman of committing election crimes,” repeated those claims to “Georgia legislators and other Georgia officials in an effort to persuade them to unlawfully change the outcome of the . . . presidential election in favor of Donald Trump,” and harassed and intimidated Freeman.
5. They “corruptly solicited high-ranking [U.S.] Department of Justice officials to make false statements to government officials in Fulton County, Georgia,” including an instance where Trump allegedly “stated to the Acting United States Attorney General, ‘Just say that the election was corrupt, and leave the rest to me and the Republican congressmen.’”
6. They “corruptly solicited the [U.S.] Vice President . . . to violate the [U.S.] Constitution and federal law by unlawfully rejecting Electoral College votes cast . . . by the duly elected and qualified presidential electors from Georgia” and other states.
7. They “corruptly conspired . . . to unlawfully access secure voting equipment and voter data,” “stole data, including ballot images, voting equipment software, and personal voter information,” and distributed that data “to other members of the enterprise. . . .”
8. They “filed false documents, made false statements to government investigators, and committed perjury in judicial proceedings in Fulton County, Georgia, and elsewhere in furtherance of and to cover up the conspiracy.”

Overt Acts

The indictment goes on to list 161 alleged “acts of racketeering activity and overt acts in furtherance of the conspiracy” by named and unnamed members of the enterprise. Of these, 43 describe acts allegedly committed by Trump himself. They fall into several categories:

• 6 are other crimes Trump is charged with as part of the indictment, which are described in other subsections below (acts 42, 108, 112, 113, 156, and 157).
• 11 are meetings or phone calls with state officials in Arizona, Georgia, Michigan, and Pennsylvania in which Trump made false statements about the election or solicited fake slates of electors (acts 5, 7, 8, 9, 14, 17, 29, 31, 43, 93, and 95).
• 8 are meetings or phone calls with campaign officials, Republican Party officials, Department of Justice officials, or then-Vice President Mike Pence (R) where Trump made false statements about the election, solicited fake slates of electors, or solicited interference with the electoral count in Congress (acts 19, 44, 90, 97, 123, 130, 131, and 132).
• 3 are public speeches and press releases where Trump or his campaign made false claims about the election (acts 1, 133, and 135).
• 13 are . . . Tweets. Seriously. I’m not kidding. Prosecutors claim that a bunch of Trump’s dumb posts on Twitter about the election were part of a massive racketeering conspiracy. This is abject absurdity (acts 22, 26, 27, 32, 75, 100, 101, 106, 114, 128, 138, 139, and 140).
• 2 are . . . nothing. . . . One describes a phone call to the President Pro Tempore of the Georgia Senate with no associated claim of false statements or solicitation. The other is a mere request for the contact information for some Georgia officials (acts 30 and 40).

Fake Electors

Prosecutors allege numerous alleged criminal acts relating to a slate of fake electors, which were intended to replace the true electors and cast Georgia’s electoral ballots for Trump. These offenses are described in counts 5, 9, 11, 13, 15, 17, and 19, and allegedly occurred between December 6, 2020, and December 14, 2020:

• Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, Smith are accused of unlawfully conspiring “to cause certain individuals to falsely hold themselves out as the duly elected and qualified presidential electors . . . with intent to mislead” federal officials “into believing that they actually were such officers” (count 9).
• Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, Smith are accused of engaging in three overlapping conspiracies relating to a document titled “Certificate of the Votes of the 2020 Electors from Georgia,” which was a false certificate by the slate of fake electors. These alleged conspiracies were:
  • A conspiracy “with the intent to defraud, to knowingly make a document . . . in such manner that the writing as made purports to have been made by authority of the duly elected and qualified presidential electors from the State of Georgia, who did not give such authority” (count 11).
  • A conspiracy “to knowingly and willfully make and use a false document” with “knowledge that said document contained the false statement” claiming that it was being enacted by the “duly elected and qualified Electors for President and Vice President” (count 13).
  • A conspiracy to “knowingly file, enter, and record a document . . . in a court of the United States, having reason to know that said document contained the materially false statement” that it was being enacted by the “duly elected and qualified Electors for President and Vice President” (count 15).
• Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, Smith are accused of engaging in two overlapping conspiracies relating to a document titled “Re: Notice of Filing of Electoral College Vacancy,” which was a false notice claiming that electors were being replaced due to vacancies. These alleged conspiracies were:
  • A conspiracy “with the intent to defraud, to knowingly make a document . . . in such manner that the writing as made purports to have been made by the authority of the duly elected and qualified presidential electors from the State of Georgia, who did not give such authority” (count 17).
  • A conspiracy “to knowingly and willfully make and use a false document . . . with knowledge that said document contained the false statements” that David Shafer was the chairman and Shawn Still was the secretary of the 2020 Georgia Electoral College meeting, which they were not (count 19).
• Trump was also accused of unlawfully soliciting “Speaker of the Georgia House of Representatives David Ralston [R], a public officer, to engage in conduct constituting the felony offense of Violation of Oath by Public Officer . . . by calling for a special session of the Georgia General Assembly for the purpose of unlawfully appointing presidential electors . . . ” (count 5), but the charge was dismissed for vagueness.

False Court Filing

Prosecutors allege under count 27 that Trump and Eastman “knowingly and unlawfully filed a document” titled “Verified Complaint for Emergency Injunctive and Declaratory Relief” with the U.S. District Court for the Northern District of Georgia on December 31, 2020, and that the defendants had “reason to know that said document contained at least one” materially false statement.

The indictment includes six examples of allegedly false statements contained in the filing. Each alleges that illegal votes were counted or that counting fraud occurred in relation to the November 3, 2020, presidential election in Georgia:

1. “As many as 2,506 felons with an uncompleted sentence” voted illegally.
2. “At least 66,247 underage” people voted illegally.
3. “At least 2,423 individuals . . . who were not listed in the State’s records as having been registered to vote” voted illegally.
4. “At least 1,043 individuals . . . who had illegally registered to vote using a postal office box as their habitation” voted illegally.
5. “As many as 10,315 or more” dead people voted.
6. “Deliberate misinformation was used to instruct Republican poll watchers and members of the press to leave the premises for the night at approximately 10:00 p.m. on November 3, 2020” at State Farm Arena in Fulton County, Georgia.

Pressuring Raffensperger

Prosecutors allege numerous criminal acts relating to an effort to mislead or pressure Georgia Secretary of State Brad Raffensperger (R) and other officials, particularly in relation to a phone conference on January 2, 2021, and a letter Trump sent on September 17, 2021. These offenses are described in counts 28, 29, 38, and 39.

January Phone Call

On January 2, 2021, Trump participated in a conference call with numerous Georgia and federal government officials. A recording of the call was leaked to the Washington Post and made public the next day. Under count 29, prosecutors allege that Trump, during that call, “knowingly, willfully, and unlawfully made at least one of the following false statements and representations” to Raffensperger, Georgia Deputy Secretary of State Jordan Fuchs (R), and Georgia Secretary of State General Counsel Ryan Germany (R).

The indictment includes thirteen examples of allegedly false statements Trump made during that call, each alleging that illegal votes were counted or that counting fraud occurred in relation to the November 3, 2020, presidential election in Georgia (or elsewhere as indicated):

1. Between 250,000 and 300,000 ballots were dropped mysteriously into the rolls.
2. Thousands of people attempted to vote but couldn’t because a ballot had already been cast in their name.
3. 4,502 people voted who were not on the voter registration list.
4. 904 people voted who were registered at an address that was a post office box.
5. Ruby Freeman was a “professional vote scammer” and “political operative.”
6. Ruby Freeman, her daughter, and others falsely awarded at least 18,000 ballots to Biden.
7. Close to 5,000 dead people voted.
8. 139% of registered voters voted in Detroit, Michigan.
9. 200,000 more votes were recorded than the number of actual voters in Pennsylvania.
10. Thousands of dead people voted in Michigan.
11. Ruby Freeman stuffed ballot boxes.
12. Hundreds of thousands of ballots had been “dumped” in two Georgia counties.
13. Trump supposedly won Georgia by 400,000 votes.

Trump and Meadows were also accused under count 28 of unlawfully soliciting Raffensperger “to engage in conduct constituting the felony offense of Violation of Oath by Public Officer . . . by unlawfully altering, unlawfully adjusting, and otherwise unlawfully influencing the certified returns for presidential electors . . . ,” but the charge was dismissed for vagueness.

September Letter

On September 17, 2021, Trump sent a letter to Raffensperger, which he and his associates also released to the public online. Under count 39, prosecutors allege that Trump, in that letter, “knowingly, willfully, and unlawfully made the following false statement and representation” to Raffensperger:

• “As stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result.”

Trump was also accused under count 38 of unlawfully soliciting Raffensperger “to engage in conduct constituting the felony offense of Violation of Oath by Public Officer . . . by unlawfully ‘decertifying the Election, or whatever the correct legal remedy is, and announce the true winner . . . ,’” but the charge was dismissed for vagueness.

The Charges

The remainder of this post is a review of the charges contained in the indictment that list Trump as a defendant, which have been grouped into logical sets. For each, I will describe the applicable laws, analyze the facts and evidence, and reach a conclusion about whether Trump should be convicted.

Lying and Influence

Six counts of the indictment (counts 5, 27, 28, 29, 38, and 39) charge Trump with filing false documents, making false statements and writings, and soliciting public officers to violate their oaths of office.

Under count 27, prosecutors accuse Trump and Eastman of “Filing False Documents” in violation of Code of Georgia § 16-10-20.1(b)(1). This relates to the document titled “Verified Complaint for Emergency Injunctive and Declaratory Relief” that was filed with the U.S. District Court for the Northern District of Georgia on December 31, 2020.

Under counts 29 and 39, prosecutors accuse Trump of making “False Statements and Writings” in violation of Code of Georgia § 16-10-20. Count 29 relates to false statements to Raffensperger and others during a conference call on January 2, 2021. Count 39 relates to a false statement to Raffensperger in a letter dated September 17, 2021.

Under counts 5, 28, and 38, prosecutors accuse Trump (counts 5 and 38) or Trump and Meadows (count 28) of “Solicitation of Violation of Oath by Public Officer” in violation of Code of Georgia §§ 16-4-7 and 16-10-1. These charges were dismissed for vagueness by Fulton County Superior Court Judge Scott McAfee on March 13, 2024.

The Law

Count 27 falls under Code of Georgia, Title 16, Chapter 10, Section 20.1, “Filing false documents,” specifically subsection (b)(1), which reads:

Possible punishments for violations of subsection (b) are described in subsection (c):

Counts 29 and 39 fall under Code of Georgia, Title 16, Chapter 10, Section 20, “False statements and writings, concealment of facts, and fraudulent documents in matters within jurisdiction of state or political subdivisions,” which reads:

Counts 5, 28, and 38 fell under Code of Georgia, Title 16, Chapter 4, Section 7, “Criminal solicitation,” and Title 16, Chapter 10, Section 1, “Violation of oath by public officer,” but were dismissed for vagueness.

Analysis

False Documents (Count 27)

In count 27, prosecutors allege that a document Trump and Eastman filed with the U.S. District Court for the Northern District of Georgia on December 31, 2020, contained at least one materially false statement.

That document, “Verified Complaint for Emergency Injunctive and Declaratory Relief,” was a filing by the Trump team in the case Trump v. Kemp in which they asked the court to issue an emergency injunction ordering the defendants—Georgia Governor Brian Kemp (R) and Raffensperger—to “de-certify the election . . . [which was] conducted contrary to the ‘Manner’ for choosing presidential electors.” The court denied the request.

To convict under § 16-10-20.1(b)(1), three conditions must be met. First, the filing must be a document entered into the public record or filed with a Georgia or U.S. federal court. Second, the document must be false, or contain “a materially false, fictitious, or fraudulent statement or representation.” Third, the accused must know, or have reason to know, that the document is false or contains materially false statements.

The first condition is obviously met—this was a filing with a federal court. The second is also likely met—many of the assertions in the filing, including the six described in the indictment, are incorrect. Whether Trump and Eastman should be convicted hinges on whether they knew or had reason to know that these assertions were false.

The indictment makes conflicting claims about whether the defendants filed a document containing falsehoods “knowingly and willingly” or just “having reason to know” that it contained one or more falsehoods. It is possible—even likely—that Trump really believed, and still believes, his false claims about the election, so it would be difficult or impossible to prove that he was “knowingly and willingly” lying. It is more difficult to determine whether he had “reason to know” the filing contained material falsehoods.

It is tempting to interpret the phrase very broadly; the term is vague enough that it could mean almost anything. If somebody makes a filing with a court (for some reason) saying that New York City is the capital of New York, and they don’t know they’re wrong, can you charge them with a crime and argue that they have “reason to know” that the state’s capital is Albany? Sure, they could have looked it up. Maybe somebody told them they were wrong. Where is the line between lying and just being wrong?

The law cannot require people to be omniscient. It can’t even demand that people possess and use critical thinking skills. People can be sincerely, stubbornly, and honestly wrong. Georgia case law is clear; this statute requires “an affirmative act by the defendant . . . [and] the presentation of a valid, though erroneous, order of court cannot constitute a crime under the statute” (Zakolski 2023, 19 § 31:27).

Prosecutors must prove beyond a reasonable doubt that Trump and Eastman lied. It’s clear that the filing was wrong, but that isn’t enough. They can’t back out of this requirement by saying Trump had “reason to know” in some nebulous sense. Even if he was told the truth by others, that does not prove that Trump believed what he was told, or that he intended to mislead the court.

False Statements (Counts 29 and 39)

In count 29, prosecutors allege that Trump made false statements to Raffensperger, Fuchs, and Germany in a phone conference on January 2, 2021. In count 39, prosecutors allege that Trump made a false statement to Raffensperger in a letter dated September 17, 2021.

To convict under § 16-10-20, three conditions must be met. First, statements must be made in relation to a “matter within the jurisdiction of any department or agency of [Georgia] state government or of the government of any county, city, or other political subdivision of [Georgia].” Second, the statements must be “false, fictitious, or fraudulent.” Third, the person who makes the false statements must do so “knowingly and willfully.”

As in the above analysis of count 27, the first condition is obviously met—Georgia’s elections are a matter within the state government’s purview.

For count 29, the second is met—many of the thirteen listed assertions Trump made during the call were false. For count 39, however, prosecutors have only listed one allegedly false assertion: “As stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result.” This is very likely false, but it has not been proved false beyond a reasonable doubt, which is the threshold that must be met for conviction.

For counts 29 and 39, as in count 27, we must accept that Trump might have sincerely believed his own nonsense, even after people told him he was wrong. The bar for the third condition under section 20 is higher than the bar was under 20.1(b)(1). Prosecutors must prove beyond a reasonable doubt that Trump “knowingly and willingly” lied—that is, that he knew the claims were false and made them anyway. They do not even have the limited “wiggle room” of claiming he at least had “reason to know.”

In Byrd v. State (1995), a Georgia appeals court stated this clearly: “’Knowingly,’ as used in statute punishing false statements and writings . . . includes knowledge of falsity of statement” (WCGA 2023, § 16-10-20 “In General”). This has not been proved.

Conclusion

The conditions for the “Filing False Documents” charge (count 27) have not been met. Trump should be acquitted.

• The document titled “Verified Complaint for Emergency Injunctive and Declaratory Relief” contained materially false statements.
• It has not been proved beyond a reasonable doubt that Trump knew they were false or had a legally actionable “reason to know” at the time he made the filing.
• It is possible—even likely—that Trump sincerely believed what he was asserting, so we cannot assume he intended to deceive the court.

The conditions for the “False Statements and Writings” charges (counts 29 and 39) have not been met. Trump should be acquitted.

• During the phone conference on January 2, 2021, Trump made numerous false statements and representations about the election.
• In the letter dated September 17, 2021, Trump made a very likely false statement alleging that there were enough false or fraudulent votes in Georgia was enough to change the election outcome, but the falsity of that claim has not been proved beyond a reasonable doubt.
• It has not been proved beyond a reasonable doubt that Trump knew these assertions were false at the time he made them or intended to deceive Georgia officials.

The “Solicitation of Violation of Oath by Public Officer” charges (counts 5, 28, and 38) were dismissed before trial.

Conspiracies

Six counts of the indictment (counts 9, 11, 13, 15, 17, and 19) charge Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith with engaging in various conspiracies. Charges against Chesebro have since been dropped pursuant to a plea agreement.

Under count 9, prosecutors accuse the defendants of “Conspiracy to Commit Impersonating a Public Officer” in violation of Code of Georgia §§ 16-4-8 and 16-10-23. This relates to the effort to put forth a slate of fake electors.

Under counts 11 and 17, prosecutors accuse the defendants of “Conspiracy to Commit Forgery in the First Degree” in violation of Code of Georgia §§ 16-4-8 and 16-9-1(b). These relate to the documents titled “Certificate of the Votes of the 2020 Electors from Georgia” and “Re: Notice of Filing of Electoral College Vacancy” respectively.

Under counts 13 and 19, prosecutors accuse the defendants of “Conspiracy to Commit False Statements and Writings” in violation of Code of Georgia §§ 16-4-8 and 16-10-20. These also relate to the documents titled “Certificate of the Votes of the 2020 Electors from Georgia” and “Re: Notice of Filing of Electoral College Vacancy” respectively, specifically to false statements therein.

Under count 15, prosecutors accuse the defendants of “Conspiracy to Commit Filing False Documents” in violation of Code of Georgia §§ 16-4-8 and 16-10-20.1(b)(1). This relates to the filing of the document titled “Certificate of the Votes of the 2020 Electors from Georgia,” specifically to a materially false statement therein.

The Law

Each of the conspiracy counts fall under Code of Georgia, Title 16, Chapter 4, Section 8, “Conspiracy to commit a crime,” which reads:

Each count cites both the above code section and another section that defines other crimes the alleged conspirators committed or intended to commit.

Count 9 refers to Code of Georgia, Title 16, Chapter 10, Section 23, “Impersonating a public officer or employee,” which reads:

Counts 11 and 17 refer to Code of Georgia, Title 16, Chapter 9, Section 1, “Forgery,” specifically subsection (b), which reads:

The potential punishment for forgery in the first degree is defined in Code of Georgia, Title 16, Chapter 9, Section 2, specifically subsection (a), which reads:

Counts 13 and 19 refer to Code of Georgia, Title 16, Chapter 10, Section 20, “False statements and writings, concealment of facts, and fraudulent documents in matters within jurisdiction of state or political subdivisions,” which reads:

Count 15 refers to Code of Georgia, Title 16, Chapter 10, Section 20.1, “Filing false documents,” specifically subsection (b)(1), which reads:

Possible punishments for violations of subsection (b) are described in subsection (c):

Analysis

In counts 9, 11, 13, 16, 17, and 19, prosecutors allege that Trump and co-defendants Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith engaged in conspiracies to commit other crimes. Charges were later dropped against Chesebro as part of a plea agreement.

To convict under § 16-4-8, there must be proof of an arrangement between two or more people to commit another crime, and at least one member of the conspiracy must have committed an “overt act” in furtherance of the conspiracy. Prosecutors are also required to prove that conspirators had criminal intent and must cite the specific law or laws that the conspirators intended to violate (WCGA 2023, § 16-4-8, “in general,” “intent”).

Following is an analysis of whether these conditions are met in relation to each of the counts.

Impersonation (Count 9)

In count 9, prosecutors allege that Trump and his co-defendants were involved in a conspiracy to impersonate public officers. This relates to an effort to put forth a slate of fake electors who would cast Georgia’s electoral votes for Trump.

On December 14, 2020, a group of fake electors allegedly “unlawfully [and] falsely held themselves out as the duly elected and qualified presidential electors from the State of Georgia.” They created a document titled “Certificate of the Votes of the 2020 Electors from Georgia,” signed it, and mailed copies to the President of the U.S. Senate, the U.S. Archivist, the Georgia Secretary of State, and the Chief Justice of the United States. The document included the text, “We, the undersigned, being the duly elected and qualified Electors . . . from the State of Georgia, do hereby certify the following. . . .”

Latham, Shafer, and Still are charged directly with the crime of impersonation under count 8; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime. Under § 16-10-23, the crime of impersonating a public officer or employee occurs when somebody “holds himself . . . out as a peace officer . . . or other public officer or employee with intent to mislead another into believing that he or she is actually such officer.”

The state of Georgia, through a lawful electoral process, appointed a slate of electors pledged to Biden to serve as its delegation to the Electoral College. The slate of electors pledged to Trump were not lawfully appointed by state authorities. Thus, when they created the purported “certificate” and signed it as Georgia electors, they were impersonating the true electors. And when they sent their false “certificate” to state and federal authorities, that clearly constituted an attempt to mislead.

The conditions establishing that a conspiracy existed are met—at least two people were involved, the actual commission of the crime constitutes an “overt act,” and there is obvious criminal intent. They knew they were claiming to be something they weren’t. And unlike the conspiracy charges Trump is facing under his two federal indictments (see part 3 and part 4), this one clearly describes a nexus to a real crime for which other alleged conspirators are facing charges.

Whether Trump should be convicted hinges on whether it can be proved beyond a reasonable doubt that he was part of the conspiracy, meaning that he had some sort of agreement with those who committed the crime. That agreement “need not be express, nor does it require a meeting of the minds to the same degree necessary to form a contract; all that is required is a tacit mutual understanding between persons to pursue a common criminal objective” (Zakolski 2023, § 4:10).

This is a little too vague for my tastes—I would prefer a legal requirement for express agreement or some other concrete participation—but it is clear enough to pass constitutional muster.

The indictment does not clearly explain Trump’s alleged connection to the conspiracy, but we can fill in the gaps from media reports and congressional committee testimony. The plan to submit “alternative” (fake) slates of electors from Georgia and other states originated in a memo from Chesebro, who was a lawyer acting as an advisor to the Trump campaign. It was then taken up by Giuliani and others inside the campaign organization. Trump was aware of the plan. It is not proved that Trump gave express approval (though he probably did), but his tacit approval—that he didn’t call off the scheme—is sufficient under the Georgia statute.

The conditions of the crime are met. Trump should be convicted.

Forgery (Counts 11 and 17)

In counts 11 and 17, prosecutors allege that Trump and his co-defendants were involved in a conspiracy to commit forgery. These also relate to the effort to put forth a slate of fake electors who would cast Georgia’s electoral votes for Trump.

Count 11 relates closely to the impersonation conspiracy described in the analysis of count 9 above. As described there, the group of fake electors created a document titled “Certificate of the Votes of the 2020 Electors from Georgia.” In this count, they are accused of unlawfully conspiring “with the intent to defraud” to create that same document, which purports “to have been made by authority of the duly elected and qualified presidential electors . . . who did not give such authority . . . ,” and to “utter and deliver said document” to the U.S. archivist.

Latham, Shafer, and Still are charged directly with the crime of forgery under count 10; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime. Under § 16-9-1, the crime of forgery occurs when somebody “with the intent to defraud . . . knowingly makes, alters, or possesses any writing, other than a check, . . . by authority of one who did not give such authority and utters or delivers such writing.”

In short, those who created the document, or conspired with them, are accused of both impersonating the real electors (counts 8 and 9) and creating a forgery of a true electoral certificate (counts 10 and 11).

The conditions for forgery include an intent to defraud, that the forged document was made knowingly, that it lacked the authority of the proper officials, and that it was delivered to others. They all apply in this case. And the conditions of conspiracy are also met; at least two people were involved, at least one of them committed an “overt act,” and there is obvious criminal intent. Trump’s involvement in the conspiracy is also clear for the same reasons described in the analysis of count 9.

The conditions of the crime are met for count 11. Trump should be convicted.

Count 17 is also related to the false elector scheme. The defendants are accused of conspiring to make “with the intent to defraud” a document titled “Re: Notice of Filling of Electoral College Vacancy,” which purports “to have been made by authority of the duly elected and qualified presidential electors . . . who did not give such authority . . . ,” and to “utter and deliver said document” to the U.S. archivist and the office of the Governor of Georgia.

Latham, Shafer, and Still are charged directly with the crime of forgery under count 16; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime.

As with count 11, the conditions are the crime are met for count 17. Trump should be convicted.

False Statements (Counts 13 and 19)

In counts 13 and 19, prosecutors allege that Trump and his co-defendants were involved in a conspiracy to commit false statements and writings. These also relate to the effort to put forth a slate of fake electors who would then cast Georgia’s electoral votes for Trump.

Count 13 relates closely to the impersonation conspiracy described in the analysis of count 9 and the forgery conspiracy described in the analysis of count 11. As previously described, the group of fake electors created a document titled “Certificate of the Votes of the 2020 Electors from Georgia.” In this count, they are accused of unlawfully conspiring to “knowingly and willfully make and use a false document” containing the false statement, “We, the undersigned, being the duly elected and qualified Electors. . . .”

Latham, Shafer, and Still are charged directly with the crime of false statements and writings under count 12; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime. Under § 16-10-20, the crime of false statements and writings occurs when somebody “knowingly and willfully . . . makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state. . . .”

Those who created the document, or conspired with them, are accused of impersonating the real electors (counts 8 and 9), creating a forgery of a true electoral certificate (counts 10 and 11), and making false statements and writings (counts 12 and 13).

The conditions for false statements and writings include that the statements are in relation to a state department or agency; be false, fictitious, or fraudulent; and are made knowingly and willingly. They all apply in this case. And the conditions of conspiracy are also met; at least two people were involved, at least one of them committed an “overt act,” and there is obvious criminal intent. Trump’s involvement in the conspiracy is also clear for the same reasons described under the analysis of count 9 (and 11).

The conditions of the crime are met for count 13. Trump should be convicted.

Count 19 is also related to the false elector scheme. The defendants are accused of conspiring to “knowingly and willfully make and use a false document,” namely “Re: Notice of Filling of Electoral College Vacancy,” which falsely claims that Shafer was chairman of the Georgia elector meeting and Still was the secretary, when they were not electors and were not participants in the true meeting of electors.

Latham, Shafer, and Still are charged directly with the crime of false statements and writings under count 18; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime.

As with count 13, the conditions are the crime are met for count 19. Trump should be convicted.

False Documents (Count 15)

In count 15, prosecutors allege that Trump and his co-defendants were involved in a conspiracy to file false documents. This also relates to the effort to put forth a slate of fake electors who would then cast Georgia’s electoral votes for Trump.

Count 15 relates closely to the impersonation conspiracy described in the analysis of count 9, the forgery conspiracy described in the analysis of count 11, and the false statements and writings conspiracy described in count 13. As previously described, the group of fake electors created a document titled “Certificate of the Votes of the 2020 Electors from Georgia.” In this count, they are accused of unlawfully conspiring to “knowingly file, enter, and record” the document with reason to know that it contained the materially false statement, “We, the undersigned, being the duly elected and qualified Electors . . . ,” and then mailing the document to the U.S. District Court for the Northern District of Georgia.

Latham, Shafer, and Still are charged directly with the crime of filing a false document under count 14; Trump and the named co-defendants are charged here with being part of a conspiracy to commit that crime. Under § 16-10-20.1(b)(1), it is a crime to “knowingly file, enter, or record any document in a public record or court of this state or of the United States knowing or having reason to know that such document is false or contains a materially false, fictitious, or fraudulent statement or representation. . . .”

Those who created the document, or conspired with them, are accused of impersonating the real electors (counts 8 and 9), creating a forgery of a true electoral certificate (counts 10 and 11), making false statements and writings (counts 12 and 13), and filing a false document (count 15).

The conditions for filing a false document are that the document is entered into the public record or filed with a Georgia or U.S. court; that it contains a materially false, fictitious, or fraudulent statement or representation; and that the accused knows or has reason to know that the document is false or contains false statements. They all apply in this case. And the conditions of conspiracy are also met; at least two people were involved, at least one of them committed an “overt act,” and there is obvious criminal intent. Trump’s involvement in the conspiracy is also clear for the same reasons described under the analysis of count 9 (and 11, and 13).

The conditions of the crime are met for count 15. Trump should be convicted.

Conclusion

The conditions for the “Conspiracy to Commit Impersonating a Public Officer” charge (count 9) have been met. Trump should be convicted.

• The fake elector plan dreamed up by Chesebro and put into action by Giuliani and other Trump campaign officials was blatantly illegal.
• Trump approved the plan (at least tacitly) and allowed it to proceed within the campaign organization that he controlled; in other words, he was a co-conspirator.
• Longstanding legal principle holds that all members of a conspiracy share responsibility for crimes committed by others in furtherance of the conspiracy.
• The fake electors, by creating the document described in count 9, were impersonating the true electors, who were public officers.

The conditions for the “Conspiracy to Commit Forgery in the First Degree” charges (counts 11 and 17) have been met. Trump should be convicted.

• As explained under count 9, the fake elector plan was illegal, Trump at least tacitly approved the plan, and all members of a conspiracy share responsibility for crimes committed by the co-conspirators.
• The documents described in counts 11 and 17 were forgeries. They purported to be authorized by Georgia’s electors but were created by the unauthorized fake electors.

The conditions for the “Conspiracy to Commit False Statements and Writings” charge (counts 13 and 19) have been met. Trump should be convicted.

• As explained under counts 9, 11, and 17, the fake elector plan was illegal, Trump at least tacitly approved the plan, and all members of a conspiracy share responsibility for crimes committed by the co-conspirators.
• The documents described in counts 13 and 19 contained false statements and writings and were created knowingly and willingly by co-conspirators.

The conditions for the “Conspiracy to Commit Filing False Documents” charge (count 15) have been met. Trump should be convicted.

• As explained under counts 9, 11, 13, 17, and 19, the fake elector plan was illegal, Trump at least tacitly approved the plan, and all members of a conspiracy share responsibility for crimes committed by the co-conspirators.
• The document described in counts 15 contained at least one materially false statement, was created knowingly by co-conspirators, and was submitted to the federal court.

Racketeering

One count of the indictment (count 1) charges Trump, Cheeley, Chesebro, Clark, Eastman, Ellis, Floyd, Giuliani, Hall, Hampton, Kutti, Latham, Lee, Meadows, Powell, Roman, Shafer, Smith, and Still with racketeering. Charges against Chesebro, Ellis, Hall, and Powell have since been dropped pursuant to plea agreements.

Prosecutors accuse the defendants of “Violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act” in violation of Code of Georgia § 16-14-4(c).

The Law

Count 1 falls under Code of Georgia, Title 16, Chapter 14, Section 4, “Prohibited activities,” specifically subsection (c), which reads:

Under this subsection, it is a crime to “conspire or endeavor” to violate the provisions of subsections (a) or (b) of the same section. Those subsections read:

These subsections are part of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) statute. Several key terms are defined in the previous section, Code of Georgia, Title 16, Chapter 14, Section 3. The following are the relevant subsections relating to this case.

Subsection (3) provides the definition of an “enterprise” under Georgia RICO:

Subsection (4)(A) provides the definition of a “pattern of racketeering activity” under Georgia RICO:

Subsection (5)(A) provides the definition of “racketeering activity” under Georgia RICO (relevant sections excerpted):

Finally, the Georgia legislature adopted an explicit statement of its findings and the intent of the RICO statute. This is located in Code of Georgia, Title 16, Chapter 14, Section 2:

Analysis

In count 1, prosecutors allege that Trump and co-defendants Trump, Cheeley, Chesebro, Clark, Eastman, Ellis, Floyd, Giuliani, Hall, Hampton, Kutti, Latham, Lee, Meadows, Powell, Roman, Shafer, Smith, and Still were part of a criminal enterprise that engaged or conspired to engage in a pattern of racketeering. Charges against Chesebro, Ellis, Hall, and Powell have since been dropped pursuant to plea agreements.

This charge is made under the Georgia RICO (Racketeer Influenced and Corrupt Organizations) act, which is modeled on the federal RICO act.

Federal RICO

The original federal RICO statute was adopted as part of the Organized Crime Act of 1970. Its purpose was “to attack organized criminal activity and preserve marketplace integrity by investigating, controlling, and prosecuting persons who participate or conspire to participate in racketeering” (Garner 2019, “racketeer influenced . . . ”). Though primarily targeted at “organized-crime families,” RICO also applies to “anyone who uses a business in any way to commit two or more of the many racketeering offenses” (Batten 2010, “racketeering”).

To convict under federal RICO—United States Code, Title 18, Sections 1961-1968—a defendant must be part of an organization or enterprise that has engaged in multiple predicate criminal acts. Those predicate acts must be in the list of other crimes that are defined in the statute as racketeering (Sheppard 2012, “racketeer influenced . . . ”).

Violators of the federal statute are subject to steep criminal punishment and civil liability. A federal RICO defendant can be fined and imprisoned for up to twenty years for each violation, forfeits all interests and claims in the criminal enterprise, and forfeits any ill-gained property. After all that, the victims of the scheme can collect three-times their damages and force the defendant to pay legal fees and other litigation costs. “The intent of the many and various sanctions is to cripple, and ultimately eradicate, organized crime enterprises” (Batten 2010, “racketeering”).

Many states have adopted their own “little RICO” acts. Most of these are more-or-less the same as the federal act.

Georgia RICO

Georgia adopted its version of RICO in 1980. It generally follows the same structure as federal RICO but includes its own list of Georgia statutes that constitute the predicate acts along with an incorporation of those in federal law.

The statement of intent originally adopted by the Georgia legislature limited the law’s application to “organized criminal elements” that engaged in “an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain” (Floyd 2011, “Georgia overview”). “Pecuniary” means “consisting of, measured in, or relating to money” (M-W Law 2023, “pecuniary”), and Georgia state courts found in Sevcech v. Ingles Mkts. (1996) that conviction required proof of a “motive or effect of . . . pecuniary gain” (Floyd 2011, “Georgia overview”).

In 1997, the statute was amended to remove the reference to “organized criminal elements,” expand the scope to “an interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury,” and assert that the law should be “liberally construed to effectuate the remedial purposes” (Floyd 2011, “Georgia overview”).

The assertion that the law should be “liberally construed” means that the legislature desires that the courts use a “liberal interpretation” or “liberal construction” of the text. This means a “broad interpretation of a text in light of the situation presented . . . [usually] with the object of effectuating the spirit and broad purpose of the text” (Garner 2019, “interpretation”). However, it “does not mean that the words will be strained beyond their natural or customary meanings” (Batten 2010, “construction”).

Conditions for Conviction

The conditions for conviction under § 16-14-4(c) require some untangling. The only requirement described in that subsection is that the accused conspired or endeavored to violate subsection (a) or (b) of the same section.

The indictment cites § 16-14-4(b); that subsection requires that the accused conducted or participated in an enterprise through a pattern of racketeering activity.

Then we turn to § 16-14-3(3), § 16-14-3(4)(A), and § 16-14-3(5)(A) for definitions of these terms. An “enterprise” is any formal or informal association between a group of people. A “pattern of racketeering activity” is engaging in at least two acts of racketeering activity with similar intents or results that are not isolated incidents. “Racketeering activity” is the commission, attempted commission, or solicitation to commit an indictable crime under the list of specific categories.

And finally, the charge must be consistent with the legislative intent expressed in § 16-14-2(b). There must be an interrelated pattern of criminal activity, and the criminal activity is motivated by, or has the effect of, monetary (“pecuniary”) gain or economic or physical threat or injury.

The elements spread across these sections and subsections can be combined and simplified into a list of four conditions for conviction:

1. There must be an enterprise, which is a group of people. It can be a formal legal entity like a business, or just an informal association or conspiracy.
2. The enterprise must have engaged in a pattern of racketeering activity, meaning its members committed or attempted to commit at least two indictable crimes in the specified categories.
3. The defendant must have conspired or endeavored to either conduct or participate in the enterprise.
4. The motivation for the criminal activity of the enterprise must be monetary gain, economic threat or injury, or physical threat or injury.

Are the Conditions Met?

The first condition—the existence of an enterprise—is met. As described earlier in the analyses of Trump’s conspiracy charges, there was a conspiracy, its members had criminal intent, and at least one member committed an overt act in furtherance of its goals. The conspiracy itself meets the criteria of an enterprise under Georgia RICO.

The second condition—a pattern of racketeering activity—is also met. In normal usage, “racketeering” is something done by “members of organized-crime operations” (Batten 2010, “racketeering”), but under the Georgia statute it refers to the commission (or attempted commission) of specified criminal acts while part of an enterprise. The list of possible predicate acts includes crimes that members of the enterprise committed, including forgery (§ 16-9-1), false statements and writings (§ 16-10-20), filing false documents (§ 16-10-20.1), and impersonation (§ 16-10-23). These together constitute a “pattern of racketeering activity” under Georgia RICO.

The third condition—participation in the enterprise—is also met in Trump’s case. It is already established in the analyses of Trump’s conspiracy charges that Trump was a willing participant in the conspiracy. Thus, he did “conspire or endeavor” to “participate in, directly or indirectly,” the enterprise under Georgia RICO.

The fourth condition for conviction relates to the intent of Georgia RICO as defined in § 16-14-2(b). The law is meant to be used against “an interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury.” In other words, a Georgia RICO conviction is only warranted when the motivation of the criminal enterprise is monetary (“pecuniary”) gain, economic threat or injury, or physical threat or injury.

In the indictment’s “Introduction” section, prosecutors describe Trump’s scheme this way:

Prosecutors have not presented any evidence that the conspiracy to change the outcome of the election was motivated by monetary gain, economic threat or injury, or physical threat or injury. The indictment does not contain the words “monetary,” “pecuniary,” “economic,” “physical,” “threat,” or “injury,” anywhere in its ninety-eight pages.

The fourth condition is not met. Trump and the conspirators were likely motivated by power, or possibly by a misguided belief that the election in Georgia really was stolen. Neither of those motives fall under the purview of the Georgia RICO statute. Thus, Trump should be acquitted.

Conclusion

The conditions for the “Violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act” charge (count 1) have not been met. Trump should be acquitted.

• As defined under Georgia RICO, there was a criminal enterprise, it engaged in a pattern of racketeering activity, and Trump was part of it.
• However, the statute can only be used when the criminal activity is motivated by monetary gain, economic threat or injury, or physical threat or injury. None of those apply in this case.

Summary of Conclusions

The following is a summary of conclusions on each of the charges comprising this indictment. If they go to trial, this is how they should turn out based on the analyses above:

• Count 1, “Violation of the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act” – Not Guilty (Trump, Cheeley, Chesebro, Clark, Eastman, Ellis, Floyd, Giuliani, Hall, Hampton, Kutti, Latham, Lee, Meadows, Powell, Roman, Shafer, Smith, and Still).
  • The statute requires that a criminal enterprise’s racketeering activity is motivated by monetary gain, economic threat or injury, or physical threat or injury.
  • The motivations in this case (power, or, if we’re being charitable, the correction of perceived electoral fraud) do not fall into any of those categories.
• Count 5, “Solicitation of Violation of Oath by Public Officer” – Dismissed (Trump).
• Count 9, “Conspiracy to Commit Impersonating a Public Officer” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators falsely claimed to be duly appointed Georgia presidential electors.
  • That constitutes impersonation of the true electors, who are public officers.
  • The defendants could be imprisoned for up to 2.5 years or fined up to $500.
• Count 11, “Conspiracy to Commit Forgery in the First Degree” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators created and delivered a forged electoral certificate.
  • The certificate included a statement that it was authorized by Georgia’s duly appointed electors, but it was not, so it was a forgery.
  • The defendants could be imprisoned for up to 7.5 years.
• Count 13, “Conspiracy to Commit False Statements and Writings” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators created and delivered a false electoral certificate containing a false statement.
  • The certificate included a statement that it was authorized by Georgia’s duly appointed electors, but it was not. The false certificate was submitted to Georgia officials.
  • The defendants could be imprisoned for up to 2.5 years or fined up to $500.
• Count 15, “Conspiracy to Commit Filing False Documents” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators created and delivered a false electoral certificate.
  • The certificate included a materially false statement that it was authorized by Georgia’s duly appointed electors, but it was not. The false certificate was submitted to a federal court.
  • The defendants could be imprisoned for up to 5 years or fined up to $5,000.
• Count 17, “Conspiracy to Commit Forgery in the First Degree” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators created and delivered a forged electoral document.
  • The document purported to be authorized by Georgia’s duly appointed electors, but it was not, so it was a forgery.
  • The defendants could be imprisoned for up to 7.5 years.
• Count 19, “Conspiracy to Commit False Statements and Writings” – Guilty (Trump, Cheeley, Chesebro, Eastman, Giuliani, Roman, and Smith).
  • Trump and his co-defendants participated in a conspiracy in which other conspirators created and delivered an electoral document containing a false statement.
  • The document purported to be authorized by Georgia’s duly appointed electors, but it was not. The false document was submitted to various public officials.
  • The defendants could be imprisoned for up to 2.5 years or fined up to $500.
• Count 27, “Filing False Documents” – Not Guilty (Trump and Eastman).
  • The document in question, a federal court filing, contained materially false statements.
  • It has not been proved beyond a reasonable doubt that Trump and Eastman knew the statements were materially false at the time, or that they intended to deceive the court.
• Count 28, “Solicitation of Violation of Oath by Public Officer” – Dismissed (Trump and Meadows).
• Count 29, “False Statements and Writings” – Not Guilty (Trump).
  • During the meeting in question, Trump made false statements to Raffensperger, Fuchs, and Germany.
  • It has not been proved beyond a reasonable doubt that Trump knew the statements were false at the time, or that he intended to deceive Georgia officials.
• Count 38, “Solicitation of Violation of Oath by Public Officer” – Dismissed (Trump).
• Count 39, “False Statements and Writings” – Not Guilty (Trump).
  • In his letter to Raffensperger, Trump made a claim that is very likely false.
  • However, it has not been proved beyond a reasonable doubt that the statement was false, or that Trump knew it was false, or that he intended to deceive Raffensperger.

The above conclusions can be summarized as follows:

• Trump (13 counts)
  • Guilty on 6 counts (9, 11, 13, 15, 17, and 19) – up to 27.5 years imprisonment or $6,500 fine
  • Not guilty on 4 counts (1, 27, 29, and 39)
  • 3 counts (5, 28, and 38) dismissed before trial

These conclusions are based on the facts as I understand them today. New evidence could change them. If that happens, I will reevaluate the affected parts of this article and add notes in the “updates” section below to describe changes.

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Updates

This post will be updated when new information becomes available. I will include editorial notes in this section briefly explaining any substantial changes.

Notes

The feature graphic at the top of this article incorporates each of the photos listed below.

These are licensed under Creative Commons licenses:

• Donald Trump by Gage Skidmore (CC BY-SA 2.0)
• Rudy Giuliani by Gage Skidmore (CC BY-SA 2.0)
• John Eastman by ISCOTUS (CC BY 3.0)
• Jenna Ellis by Gage Skidmore (CC BY-SA 2.0)
• David Shafer by Gaconservative (CC BY-SA 4.0)

These are in the public domain:

• Mark Meadows by the Office of Rep. Mark Meadows
• Jeffrey Clark by the U.S. Department of Justice
• Sidney Powell by Tom Williams

These are used without permission under the Fair Use doctrine (see declaration below):

• Kenneth Chesebro from Rolling Stone (no citation provided)
• Ray Smith III from Smith & Liss LLC
• Robert Cheeley from the Cheeley Law Group
• Mike Roman’s Twitter profile photo
• Shawn Still from Forsyth County News (cited “courtesy Shawn Still for State Senate”)
• Stephen Lee from Living Word Lutheran Church (via the Internet Archive)
• Harrison William Prescott Floyd from Wall Street Journal (cited “Ricky Fitchett/Zuma Press”)
• Trevian Kutti from CBS News (cited “Getty Images”)
• Cathy Latham’s Twitter profile photo
• Scott Hall from Anytime Bail Bonding Inc.
• Misty Hampton from DouglasNow.com on YouTube (video still; 2:09)

Fair Use Declaration: The Fair Use doctrine of U.S. copyright law (17 USC § 107) allows for unlicensed use of copyrighted material in certain circumstances, including “criticism, comment, [and] news reporting.” The following factors justify its application in this case:

1. The purpose and character of the use is to visually illustrate, for the purpose of a freely available news article, a group of alleged conspirators facing federal charges.
2. The nature of the copyrighted work is photos of those individuals.
3. The amount and substantiality of the portion [of the work] used is limited, and significant transformation has occurred. Each photo has been cropped, downsampled, overlaid by the person’s last name as it appears in the federal indictment, and then placed among other photos.
4. This use will have no foreseeable effect upon the potential market for or value of the copyrighted work.

If you are the owner of any of these photos and wish to dispute this declaration, contact me.

The PDF of the indictment included near the beginning of this post has been optimized to reduce file size.

Works Consulted

• Batten, Donna, editor. Gale Encyclopedia of American Law. Third Edition. 14 Volumes. Detroit, MI: Gale, Cengage Learning, 2010. Gale eBooks (via Fairfax County Public Library).
• Floyd, John E., editor. RICO State-by-State. Second Edition. Volume Chapter 8, Georgia. American Bar Association, 2011. Nexis Uni (via Library of Virginia).
• Garner, Bryan A., editor. Black’s Law Dictionary. Eleventh Edition. Saint Paul, MN: Thomson Reuters, 2019. Westlaw (via Loudoun County Public Library).
• Merriam-Webster Law Dictionary (M-W Law). Online Edition. Merriam-Webster Inc., 2024. Merriam-Webster.com.
• OCGA, Title 16. Official Code of Georgia Annotated. LexisNexis, 2024. Nexis Uni (via Library of Virginia).
• Sheppard, Stephen Michael. Wolters Kluwer Bouvier Law Dictionary. Desk Edition. 2 Volumes. CCH Inc., 2012. Nexis Uni (via Library of Virginia).
• WCGA, Title 16. West’s Code of Georgia Annotated. Thomson Reuters, 2023. Westlaw (via Loudoun County Public Library).
• Zakolski, Lisa A. Georgia Jurisprudence. Volume 4, 18, and 19. Lawyers Cooperative Publishing, 2023. Westlaw (via Loudoun County Public Library).

Series Links

• Part 1: Brief Overview
• Part 2: Business Records Case (New York)
• Part 3: Documents Case (Federal)
• Part 4: Election Case (Federal)
• Part 5: Election Case (Georgia) (this post)
• Part 6: Conclusions