Former President Donald Trump’s prosecutor in Georgia is wise to pursue conspiracy charges against the former president but is making a mistake by trying him and 18 co-defendants together in a single criminal proceeding, former federal prosecutor Andrew Weissmann says.
The comments came during an Aug. 23 online panel discussion that focused on the legal situation of President Trump, who is facing state charges in New York and federal charges in Florida and the District of Columbia, and what it means for American politics.
President Trump turned himself in on Aug. 24 to be booked in Fulton County, Georgia, in connection with election-related state racketeering charges arising out of his efforts to challenge the 2020 presidential election results in Georgia, whose electoral votes were eventually awarded to his Democrat opponent, President Joe Biden.
President Trump himself denies wrongdoing and characterizes the federal and state charges pending against him as interference in the 2024 presidential campaign.
Mr. Weissmann is a professor of practice at the New York University (NYU) Law School’s Center on the Administration of Criminal Law. He was a lead prosecutor from 2017 to 2019 in the office of then-special counsel Robert Mueller, who investigated President Trump’s alleged collusion with Russia. He was also chief of the fraud section of the U.S. Department of Justice (DOJ) from 2015 to 2019. He was general counsel for the FBI from 2011 to 2013, and also supervised the prosecution of more than 30 people in connection with the collapse of Enron and prosecuted organized crime figures in New York.
‘The Big Lie on Trial’
The conversation on Aug. 23, titled “U.S. v. Trump: The Big Lie on Trial,” was hosted by the Brennan Center for Justice, an influential left-wing pressure group headquartered at NYU that has long downplayed any threat that voter fraud may pose to the electoral process. The event was moderated by the group’s president and CEO, Michael Waldman, who worked as a speechwriter for President Bill Clinton, a Democrat.
Setting the stage, Mr. Waldman said the online event was occurring “at a pretty dramatic moment, literally, as [attorney] Sidney Powell has turned herself into authorities in Atlanta ... and [former U.S. attorney and New York Mayor] Rudy Giuliani is on his way there to do the same on an important day that has riveted our attention.”
“In a lot of ways, this is a pivotal moment for democracy, and it is certainly, we think, an unprecedented one. First, you have the unprecedented phenomenon, in fact, of a defeated president trying to cling to power, trying to undo the peaceful transfer of power and [rejecting] the results of an election.
“And now, two separate criminal indictments—one federal, one in state court—revolving around those matters,” he said. “Each of these would be the trial of the century.”
Mr. Waldman added: “The title of this event really says it all—Donald Trump is not being put on trial alone. The Big Lie—the notion of widespread fraud in our elections, which undergirded his efforts to cling to power, but which [has] been so significant in so many ways, in states, and nationally, all over the country—is also on trial.”
However, those who monitor elections say there is always fraud in elections but that it’s a matter of degree.
Although some claim voter fraud is a myth “as common as unicorns and Sasquatch” and others insist fraud routinely affects election outcomes, “the truth lies somewhere in between,” according to election law expert and former DOJ civil rights attorney J. Christian Adams.
19 People Tried Together
Mr. Weissmann said it’s a mistake for Fulton County District Attorney Fani Willis, a Democrat, to attempt to try President Trump and 18 co-defendants—including his former attorneys—together in one trial beginning on March 4, 2024.The grand jury indicted the defendants under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, including various charges such as soliciting the violation of an oath by a public officer, conspiracy to commit forgery in the first degree, and conspiracy to commit filing of false documents.
“Personally, I, having been a prosecutor for over 20 years—I’ve also been a defense lawyer—I actually think trying 19 people together is a gift to the defense side ... and I just don’t expect that that’s going to happen.
“At the federal level, there’s actually kind of a presumption of prejudice ... if that number is over 10 people, but it’s just simply not a great practice.
“You want the jury to be able to decide whether the proof is there beyond a reasonable doubt as to each defendant,” and a cohort of 19 defendants is “unwieldy,” and will adversely affect “decorum and speed and having a serious trial.”
‘History of Bringing RICO Cases’
But Ms. Willis was “really smart” to pursue conspiracy charges, including allegations of what took place in other states, because it would allow her “to put before the jury the whole story,” Mr. Weissmann continued.A juror might question how acts performed in Georgia alone would affect the federal election in the whole country, he said.
“She really wanted to make sure she encompassed the entire scheme.
“She obviously has a history of bringing RICO cases. And so I think she’s very comfortable with that in different circumstances,” Mr. Weissmann said.
While it may not be necessary for the government to prove in the election-interference case brought by special counsel Jack Smith in Washington that President Trump knew he lost the election, it’s a good idea for the prosecution to present evidence on the point, he said.
President Trump has in fact consistently claimed, often adamantly, that he won the 2020 election.
Even if President Trump had been charged with engaging in physical violence on Jan. 6, 2021, he wouldn’t be able to raise as a defense his belief that he won the election because that belief “doesn’t entitle you to use physical violence,” Mr. Weissmann said.
And if the Washington jury finds he did win the election, “that actually might be a motive for him to engage in the crime charged.”
Even though that belief may not be an element of the crime, that “doesn’t mean that you don’t want to prove it. I think of it in terms of motive evidence,” he said.
Often “if you have good proof of motive, you want to put it in there,” he added.
Discussion of President Trump’s motive “does speak to a larger audience,” Mr. Weissmann said, adding that both Ms. Willis and Mr. Smith began their indictments “by saying Donald Trump lost.”
Mr. Waldman interjected, saying, “in almost identical language.”
“Exactly,” Mr. Weissmann replied.
Presidential Immunity
The Supreme Court may get involved in the Trump prosecutions at some point, he said.The issue of presidential immunity and the immunity claimed by former federal officers such as former White House chief of staff Mark Meadows, who is charged in Georgia, will have to be dealt with, he said.
As of press time, the U.S. District Court for the Northern District of Georgia hadn’t ruled on the request by Mr. Meadows, former U.S. Assistant Attorney General Jeffrey Clark, and David Shafer, one of the Georgia electors from the alternate Trump slate of electors, to “remove” the state case to federal court.
While some of the co-defendants are claiming immunity because they were acting within the scope of their office, “I think that is a hard argument to make,” he said.
If there is evidence to support the indictments related to the security breach at the U.S. Capitol on Jan. 6, 2021, these are “crimes that are antithetical to the oath of office that those federal officers took.”
“To state the obvious, it is not part of your oath of office to engage in a coup. It’s not part of your oath of office to threaten the secretary of state of Georgia with criminal prosecution if he doesn’t find the requisite number of votes,” he said.
Republicans counter that it’s Democrats who have been engaged in a rolling coup against President Trump from the time he was elected in 2016. Republicans say that Democrats weaponized the FBI and the intelligence community and used both institutions to sabotage the Trump administration and the Trump campaign.
Republicans also accuse Democrats of criminalizing political differences in the Trump era.
For his part, President Trump denies he did anything wrong or that he threatened Georgia Secretary of State Brad Raffensperger, a Republican, when he placed a telephone call to him on Jan. 2, 2021, to discuss the election, an action that in itself isn’t illegal. The media characterized the call as part of an effort to “find” enough votes to secure the state’s votes in the Electoral College. A transcript of the call that was later released showed that President Trump said he believed hundreds of thousands of ballots had been cast illegally in the state.
Mr. Weissmann said the federal officers “would have to be able to convince a court that the conduct at issue was consistent and part of your duties as a federal official.”
Disqualification Clause
Another issue is whether President Trump is eligible to become president again because of the disqualification clause in the 14th Amendment, he said.The clause disqualifies from the office of president, vice president, senator, representative, and other posts any individuals who violate an oath to support the Constitution by engaging in “insurrection or rebellion ... or [who have] given aid or comfort to the enemies thereof.”
Legal scholars, except for a few on the left, say the clause, which was aimed at Confederates after the Civil War, doesn’t apply to President Trump. They say that President Trump was well within his rights to express his opinion that the election was botched or even rigged and to make vigorous efforts to contest the election results. Some have noted that there’s no law that requires a defeated candidate to concede to the winner.
But Mr. Weissmann takes it as a given that President Trump “engaged in insurrection or rebellion” and said that “raises a whole host of legal issues that are undecided.”
Presumably, the Supreme Court would want to rule on the issue “prior to the Republican convention” that will choose a presidential nominee in Milwaukee in July 2024, he said.
The Supreme Court would be “in uncharted territory with respect to the first-ever criminal charges against a former president,” he said, noting President Trump is under indictment for crimes alleged to have taken place before, during, and after his presidency.
“If he were to regain the presidency, what happens to any charges that are not dismissed?” he asked.
President Trump wouldn’t need to pardon himself for federal charges because he could simply order his attorney general to get rid of them, but it’s unclear if pending state charges would be stayed during his second term of office, the former prosecutor said.
