Kim Wehle writes:

In the months leading up to this indictment, Trump’s lawyers tried mightily to kill this case, filing a 483-page motion seeking to have District Attorney Fani Willis removed and the report from the investigative grand jury (or “special” grand jury) that preceded the charging grand jury thrown out. The motion was denied, but the effort signaled that Trump may be especially worried about this case. He should be, for these reasons:

First, Georgia’s RICO statute carries a five-year minimum prison term if convicted, and could stretch up to twenty years.

Second, because this indictment does not involve federal crimes, Trump can’t try to evade the law with a self-pardon, either lodged in a drawer for safekeeping before he left office (a disturbing possibility that would presumably spark a major court fight) or issued if he is elected for another term (in that event he wouldn’t need a pardon—he could just shut down the DOJ probe). In Georgia, Trump can’t even rely on a Republican governor to wave a magic wand and issue a pardon. Georgia is one of only a handful of states that assigns the power to a special panel, the Board of Pardons and Paroles, whose members are appointed by the governor but serve staggered, seven-year terms. Pardons are only available post-conviction and after a defendant has served five years of his sentence.

There is thus a very good chance that Trump will go to jail at some point. Even if he wins four more years in the White House, that will not stop this state criminal trial or the execution of a sentence, which, if he were re-elected to the presidency, he could presumably be forced to serve after his term ends.

Third, this indictment is the only one that arguably includes metaphorical ‘dead bodies’ strewn across the stage—so that jurors can viscerally understand the case, which will be necessary if they are going to convict a former president. So far, it’s unclear what harm, if any, befell national security as a result of the Mar-a-Lago classified documents case. Prosecutors need to figure out a way to show that Trump’s astonishing recklessness actually hurt people. The January 6th indictment consists of three conspiracy charges and one count of obstructing an official proceeding—all important charges for our democracy and for the rule of law, but relatively abstract concepts that could be hard for jurors to get upset about.

The Georgia indictment, however, is different. It involves real people with respectable lives who suffered serious harm. [Continue reading…]