Trump's Georgia Indictment Raises Familiar Questions of Knowledge and Intent

The Georgia indictment that was unveiled last night charges former President Donald Trump and 18 other defendants with participating in an "enterprise" that engaged in a pattern of "racketeering activity" aimed at an illegal result: keeping Trump in office after he was defeated by Joe Biden in the 2020 presidential election. By relying on Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, Reason's Elizabeth Nolan Brown notes, Fulton County District Attorney Fani T. Willis was able to connect "a lot of related and relatively unrelated conduct"—including 161 listed actions—by "a bunch of disparate people, some acting directly in concert with Trump and his legal team and some much further removed."

Georgia's RICO law, as interpreted by state courts, is even broader than the famously flexible federal version, covering many more "predicate offenses," defining "enterprise" very loosely, and prescribing a weaker test for establishing a pattern of racketeering activity. The indictment nevertheless hinges on debatable interpretations of specific conduct that Willis portrays as part of a criminal conspiracy but the defendants will characterize as legitimate efforts to rectify what they perceived as systematic election fraud. As with the federal indictment of Trump that was unsealed earlier this month, which covers much of the same territory, the choice between those dueling descriptions will depend largely on how a jury views each defendant's knowledge and intent.

In addition to the RICO charges, each defendant is charged with at least one independently illegal act. Trump himself is charged with 12 of those underlying offenses.

Count 28, for example, alleges that Trump solicited a felony during the notorious January 2, 2021, telephone conversation in which he urged Georgia Secretary of State Brad Raffensperger to "find" the 12,000 or so votes that would be necessary to reverse Biden's victory in that state. The felony that Trump wanted Raffensperger to commit, according to the indictment, was "violation of oath" by a "public officer," and intentional solicitation of that crime is also a felony.

That is a plausible interpretation of Trump's conversation with Raffensperger, during which he floated one debunked election-fraud claim after another and seemed impervious to Raffensperger's refutations. Trump also suggested that Raffensperger could be criminally liable if he failed to do what Trump asked.

Trump, of course, argues that, far from encouraging Raffensperger to violate his oath, he was asking him to do his job by addressing supposedly credible fraud allegations. The question is not just whether those allegations were in fact credible (they were not, as Raffensperger pointed out repeatedly) but also whether Trump truly believed they were. When you read the transcript of that conversation, it is hard to tell.

Similarly, Count 27 charges that Trump knowingly filed a false document, also a felony, when he submitted a December 31, 2020, complaint as part of his lawsuit challenging the election results in Georgia. Among other things, that document falsely claimed that Georgia had counted votes from "as many as 2,506 felons with an uncompleted sentence," "at least 66,247 underage" people, "at least 2,423" unregistered voters, "at least 1,043" people with P.O. boxes listed as their addresses, and "as many as 10,315 or more" dead people.

Did Trump know those claims were inaccurate when he endorsed them? There is some evidence that he did. During litigation over access to Trump lawyer John Eastman's emails by the House select committee that investigated the 2021 Capitol riot, a federal judge noted that Eastman, in a December 30, 2020, email, "relayed 'concerns' from President Trump's team 'about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.'"

The next day, Eastman elaborated on those concerns: "Although the President signed a verification for [a state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate."

Trump apparently was unfazed. "President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them," U.S. District Judge David O. Carter wrote. "President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers 'are true and correct' or 'believed to be true and correct' to the best of his knowledge and belief."

In other words, Carter said, "the emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public." Carter concluded that the messages therefore were "sufficiently related to and in furtherance of a conspiracy to defraud the United States," making them available to the House committee under the "crime-fraud exception" to attorney-client privilege and the work product doctrine.

The "more likely than not" standard that Carter applied in that case, however, is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. Eastman (who is one of Trump's co-defendants) said Trump had been "made aware" that the claims about ballots cast by dead people, felons, and unregistered voters were "inaccurate." But even if someone told him the numbers were wrong, and even if Trump was paying attention, it would have been perfectly in character for him to continue believing them.

The federal indictment is filled with examples of information that Trump ignored or rejected because it conflicted with his stolen-election narrative. That stubborn resistance can be interpreted either as evidence of his dishonesty or as evidence of his longstanding tendency to embrace self-flattering delusions and never let them go.

During his conversation with Raffensperger, which happened two days after the complaint cited in the indictment was filed, Trump again claimed that many "dead people voted" in Georgia. "I think the number is close to 5,000 people," he said. That estimate was less than half as big as the number cited in his own lawsuit, which gives you a sense of how little attention he paid to such details. "The actual number [was] two," Raffensperger said. "So that's wrong."

At a certain point, as George Mason law professor Ilya Somin suggests, willful blindness to reality is hard to distinguish from deliberate deceit, and this example vividly illustrates that point. But in assessing Trump's state of mind when he made unsubstantiated claims like these, a jury will have to decide whether there is reasonable doubt as to whether he knew they were false.

Counts 3 and 24, which allege that Trump lawyer Rudy Giuliani knowingly made false statements when he testified before the Georgia Senate Judiciary Committee in December 2020, raise similar questions. During a December 3 hearing, the indictment notes, Giuliani asserted that at least 96,600 mail-in ballots were counted in Georgia's election "despite there being no record of those ballots having been returned to a county elections office." He also claimed that a Dominion Voting Systems machine in Michigan had "mistakenly recorded 6,000 votes for Joseph R. Biden when the votes were actually cast for Donald Trump." On December 30, Giuliani testified that "2,560 felons voted illegally," that "10,315 dead people voted," and that "Fulton County election workers fraudulently counted certain ballots as many as five times at State Farm Arena."

Giuliani recently admitted, in response to a defamation lawsuit by two of those election workers, that his claims about them "were false." But it is still possible that he accepted the story at the time. Giuliani certainly acted as if he sincerely believed what he was saying, which is why he seemed more like a deranged crackpot than a calculating con man. Maybe it was all pretense, but I think that may give Giuliani too much credit.

Several of the counts in the indictment, alleging offenses such as forgery, false statements, and solicitation of a felony, are related to the "alternate" electors scheme that Trump's lawyers and allies executed in Georgia and other battleground states. Under that plan, Republican nominees for the Electoral College met on December 16, voted, and presented themselves as "duly elected and qualified," contrary to the certified outcome.

There is a colorable argument, based on the precedent set by the 1960 dispute over Hawaii's electoral votes, that signing those certificates was a legitimate way to preserve the Trump campaign's options in light of its pending state lawsuit. The idea, as presented by Trump's lawyers, was that the "contingent" electors would be counted only in the (extremely unlikely) event that the lawsuit was successful.

That is how former Georgia Republican Party Chairman David Shafer, who oversaw the meeting of Trump electors, explained it at the time. Shafer, one of Trump's 18 co-defendants, insists he was not aware of any plans to go further by pressuring Vice President Mike Pence to recognize the "alternate" slate instead of Biden's when he oversaw the congressional tally of electoral votes on January 6, 2021. While Shafer may or may not be telling the truth, the question of whether the would-be electors accepted the rationale offered by Trump's legal team certainly seems relevant in assessing their intent.

Trump's lawsuit, which was filed on December 4, may have been little more than an excuse to recruit the "alternate" electors and thereby create the impression that there was reason to doubt whether Biden had actually won. Like many of the charges against Trump and his allies, that conclusion depends on the premise that they cynically pursued claims they knew had no basis in fact. But judging from the evidence we have seen so far, it seems plausible that at least some of the defendants, possibly including Trump himself, were true believers in his lost cause.