A 96% success rate for an appellate division is not a thing that any US Attorney's Office would take pride in. That means that roughly 1 in 20 convictions was reversed on appeal.
Yes, I am a former AUSA acting with imperious disdain towards a local DAs office.
Technically, it means that roughly 1 in 20 convictions that are appealed was reversed on appeal. The usual estimate is that about 10% of convictions are appealed, but I don't know exactly what the number is for Fulton County.
Not sure what Georgia state level conviction rates are (most states, I know they're a percentage point or three off from the feds) but that's basically no different than the overall conviction rate here in Tex-ass.
Meanwhile, as Ken knows and some others know, though #BlueAnon doesn't like to talk about it, people sit for months, sometimes years, occasionally to the point of death, in Fani Willis' Fulton County jail because they can't make bail.
Hearing about that on the last episode of Serious Trouble, I find it quite upsetting, and would like Fani Willis to at least pretend to be bothered by it. How can you urgently rush a white collar case to trial, and consume such vast amounts of court time with over-complicated RICO spaghetti (not just Trump's case, but also the other ongoing RICO cases, taking up 8 months for jury selection?!), and meanwhile you've got all these theoretically "innocent until proven guilty" people sitting in jail for years, denied a day in court because of the backlog.
It'd be nice to see judges take this into account when deciding who gets bail, and whether they should perhaps be varying those bail terms. How many people are waiting in jail for even longer than the likely sentence if they were convicted?
You're essentially greenlighting white collar crime if you do that. The literal only answer that's remotely acceptable is to fund the legal system properly to get through the backlogs.
It's probably out of the scope of what Ken focuses on, but if he were inclined, I'd like to hear his thoughts on Illinois's recent decision to eliminate cash bail.
Dangit, Ken. You harshed my buzz. But like I’ve said before, that’s what makes you so valuable, and would make me accurate, were I to have any friends who wanted my opinion.
The article is very helpful in making a distinction between overt Acts evidencing the conspiracy, and criminal Acts committed within the conspiracy. It makes a solid case that the indictment would have promoted public understanding if it had clearly distinguished between those two things. At the very least, it helped me understand it but there are at least 299 million other Americans who need more information.
Speaking as a former chess player, one of the things you learn is that when you're ahead and basically have a won end game, simplify - do not complicate. And when behind, make things complicated in hopes that your opponent will make a mistake.
Seems to me that Willis had a clear win if she kept it simple, but by filing an exceedingly complicated indictment she opens the door to Trump's primary litigation strategy: delay, appeal, appeal the appeal, enter a motion for whatever will drag things out the longest etc. And as Ken points out, there are both good-faith and bad-faith objections that can be raised, with the problem being that some of the bad-faith objections will still be judicable and serve to delay the process.
I'm highly skeptical that this case will get to a verdict in Trump's lifetime. Granted, some of the defendants will cop a plea, and if that was the strategy it will likely be successful. But I doubt that is the point of the exercise.
Well, that would be true in a general sense, but in this case? What is there really left to "help the public understand the situation?"
After the Jan6 Cmte hearings, all the reporting from WaPo, AJC, NYTimes and WSJ, if people don't understand - or more to the point, don't want to understand - then Shakespeare or Cicero could have written it and it's STILL not going to "help them understand," because they don't WANT to understand.
As I said, I think she did the country a service by indicting all the president's men (and women) in this coup. NO ONE else has done it.
(I keep hoping J Smith will come back and do it, but quite frankly, I think the DOJ is way too timid on the political actors - Look at Roger Stone. the video that was released where he's laying out the fake electors scheme? Why isn't this guy and Jeff Clark, and Eastman and others in Fed lock up?)
You should consider WHY no one else has done the RICO.
Obtaining a conviction is hard work. If even one juror holds out, you get a mistrial and then what? Start over from the beginning after a year or more of litigation? Back away from the prosecution altogether? So a prosecutor focused on obtaining a conviction keeps the case as simple and straightforward as possible. You're less likely to lose the jury, and you create a trial record that is easier to defend on appeal.
Ms. Willis' case is anything but simple and straightforward. it involves a likely unmanageable number of defendants, some of whom face criminal liability under RICO for alleged acts which are fairly routine examples political work. It involves some defendants who have strong arguments in favor of federal removal, and possible dismissal, e.g., pursuant to the supremacy clause. The procedural obstacles alone are headache inducing. Plus, many of the people included in the indictment (like Mr. Meadows) would be FAR more valuable as witnesses for the prosecution than defendants with a constitutional right to not take the stand.
I also think one shouldn't underestimate the political/social downside if this (to mix my metaphors) shitshow goes down in flames.
Remember, Trump didn't do this alone, and a future would-be tyrant won't either. They'll have help.
It needs to be made very clear to those that would help that doing so isn't cost free. To have a system whereby if you try a coup and you win, well, you get to make the rules, but if you lose...nothing happens? You get to keep trying?
See the problem here?
I never said it was an easy prosecution, but neither was prosecuting 1000+ people for Jan 6 nor was prosecuting the Proud Boys/Oath Keepers for sedition.
What were people saying about the sedition charges before the trials? Oh yeah...very difficult to prosecute...very rare...
I share your outrage. Don't mistake my criticism of the strategy with resisting the goal of accountability.
I do like how the DOJ has been handling the Jan. 6 prosecutions. Each very focused on the evidence that the individual defendant in the courtroom did these specific criminal acts. It is slow a painstaking work, and it built up an incredibly strong foundation of evidence for the eventual trials and convictions of people like Mr. Rhodes and Mr. Tarrio (who is likely to spend decades behind bars).
This mountain of evidence is piling up high enough that it is now touching the feet of people like Mr. Clark, Mr. Chesebro, and Mr. Eastman. And I very much hope the intellectual architechs of the coup are nearing a date in federal court as defendants. I just don't think this sprawling case is going to work.
If the style issue in question is including many acts that are not crimes in themselves, people can legitimately question that while understanding the criminal nature of Trump and his crime family.
If people can't be bothered to understand the difference between an actual crime and an overact, well...
It was pretty obvious to this non-lawyer reading the indictment that some of the acts were - by themselves - legal, but were clearly part of the pattern of the overall conspiracy, and that some of the acts were crimes. It said which were which in the indictment.
I can't help those who don't want to read the indictment, nor take a moment to actually understand what is being done, but just want to tune in to their favorite bloviator and take their word for it.
As I said, Cicero himself could have written it - those people just aren't going to care.
Agree. There is value to having someone pull the whole kit and kaboodle together under one heading. Despite her repetitious style, I think she's done a reasonable job of that.
Prosecutors also have an unfortunate habit of conflating bad, or at least unpopular, behavior that isn't criminal but is easy to prove with actual criminal behavior that is harder to prove or that the defendant may not have actually committed. The idea being that the jury will be so enraged by the former that they will conflate it with the latter and convict.
Willis has pulled some thing of the same sleight-of-hand in her indictment, although the target is the public at large rather than a particular jury. She has sexed up a rather dry recital of fraudulent electors with a bunch of salacious Trump quotes in order to guarantee maximum media coverage. It may not be good trial strategy, but it is excellent PR.
I take points off for style! She had months and months to draft this. It's the most serious (of two) state indictments ever filed against a former POTUS, and if she were able to pull this off, she'd be the greatest state-court DA in history. Her office couldn't even be bothered to proof-read closely enough to avoid duplicating or omitting numerals in the "Overt Act" count. If you're going to do a speaking indictment, you might as well make it sing; both of Smith's indictments are written with a clear voice. But this thing is jumbled, repetitive, and entirely undisciplined. It hurts her office's credibility, but worse, it's a MISSED OPPORTUNITY to educate the public.
And respectfully, do we actually know that she's named the full cast of characters? Or just some characters we hadn't focused on before? We don't know what we don't know.
I get the criticism of Willis, her pleadings, and what you suggest are gratuitous hits on Trump. First, REALLY?? He was trying to overthrow the government. Secondly, many of the remarks cited help the finders of fact determine intent. They may be 1st amendment protected but if they help explain the predicate act of threatening a public official.
Finally mixing up overt acts with criminal allegations, make over all scheme better understood. You want the jury to understand the scheme
I don’t think it’s possible to make a gratuitous hit on Trump. What’s gratuitous is loading up the overt acts with tweets, speeches, media stuff, etc. when it doesn’t move the ball and isn’t necessary, but just heightens the concerns about the First Amendment.
Thank you for again for your talent at helping us non-lawyerly people better understand some of the nuances and terms of art in this indictment too. It’s a rare and valuable talent to reveal the basics of complicated ideas. Or maybe I appreciate it more because I can’t do it myself? Kind of feel like a “Thank You For Your Service” is justified. You do good work.
Thanks, Ken, for the clarification. Of course(?), I haven’t seen any *good faith* claim that X’ing, speaking, posting, whatever is now illegal. Still; this post is a real public service. Thanks again.
I am strongly reminded of a quote from Jim Comey's book, concerning Rudy Giuliani: "The most dangerous place in Manhattan was between Giuliani and a microphone." (Paraphrased.) I hope the allure of publicity doesn't lead D.A. Willis to the same downfall in the end.
I read it because I wanted to understand the man and why he acted the way he did. I believe in a diversity of opinions, and understanding where and why those opinions come from. Your sympathies are unneeded and unwanted.
I think that's admirable. I also hope you checked it out of a library or borrowed a copy. I hate to think of that weasel getting royalties for being a weasel.
Until William & Mary canceled the legal ethics lecture he was supposed to give, I was planning to attend with a picket sign in a weasel costume. Found one on Etsy, really snappy.
The beauty of a democracy is we get to HAVE THIS CONVERSATION AT ALL!
Fani Willis sees CLEARLY the THREATS TO OUR CONSTITUTION HER CITIZENS AND PEOPLES THE RULE OF LAW AND DEMOCRACY!
That her style is a HAMMER & not a chisel is OK BY ME! Because the only thing those of us who aren’t blind want to see is the DESTRUCTION OF THE ENTIRE NETWORK OF THE CONSPIRACY AGAINST AND THE ATTEMPTED OVERTHROW OF OUR DEMOCRACY
Simple language is important to help citizens UNDERSTAND, but lay people may still not get the separation.
And old judge used to kindly come and give a training to newbies who wrote affidavits for his court.
That her style is a hammer and not a chisel is not okay with me.
This is SUCH a missed opportunity. She could have narrowed her case to Trump, the people directly involved on his behalf in the Georgia attempts to overturn the vote and present fake electors, left the other states to themselves or the feds to try to police, and presented a relatively clean, triable case with a manageable number of defendants that might actually put a jury in the box before 2027.
I wrote elsewhere that if Smith's SDFL Mar-a-Lago documents case is a rifle-shot, and the Smith's DC conspiracy case is a shotgun blast, and the Alvin Bragg case a dud firecracker, this case is an ammunition locker explosion. It might blow up somebody or -bodies, but I'm not sure DA Willis won't be among them.
Great piece, Ken. I too felt like the DC indictment was a lot tighter, laying out the difference between "these things fed the conspiracy" and "these things *were*" the conspiracy. Maybe it should never be the RICO.
A 96% success rate for an appellate division is not a thing that any US Attorney's Office would take pride in. That means that roughly 1 in 20 convictions was reversed on appeal.
Yes, I am a former AUSA acting with imperious disdain towards a local DAs office.
Technically, it means that roughly 1 in 20 convictions that are appealed was reversed on appeal. The usual estimate is that about 10% of convictions are appealed, but I don't know exactly what the number is for Fulton County.
So the real number is closer to 1 in 200.
Not sure what Georgia state level conviction rates are (most states, I know they're a percentage point or three off from the feds) but that's basically no different than the overall conviction rate here in Tex-ass.
Meanwhile, as Ken knows and some others know, though #BlueAnon doesn't like to talk about it, people sit for months, sometimes years, occasionally to the point of death, in Fani Willis' Fulton County jail because they can't make bail.
Hearing about that on the last episode of Serious Trouble, I find it quite upsetting, and would like Fani Willis to at least pretend to be bothered by it. How can you urgently rush a white collar case to trial, and consume such vast amounts of court time with over-complicated RICO spaghetti (not just Trump's case, but also the other ongoing RICO cases, taking up 8 months for jury selection?!), and meanwhile you've got all these theoretically "innocent until proven guilty" people sitting in jail for years, denied a day in court because of the backlog.
It'd be nice to see judges take this into account when deciding who gets bail, and whether they should perhaps be varying those bail terms. How many people are waiting in jail for even longer than the likely sentence if they were convicted?
You're essentially greenlighting white collar crime if you do that. The literal only answer that's remotely acceptable is to fund the legal system properly to get through the backlogs.
It's kind of like "defund the police," even if meant purely metaphorically. "Tough on crime" Democrats have run like the plague from that.
What is BlueAnon? There is no such thing.
I did my "duopoly exit" at the presidential level at the start of this century and yes there is.
It's probably out of the scope of what Ken focuses on, but if he were inclined, I'd like to hear his thoughts on Illinois's recent decision to eliminate cash bail.
Clean up the jail.
Dangit, Ken. You harshed my buzz. But like I’ve said before, that’s what makes you so valuable, and would make me accurate, were I to have any friends who wanted my opinion.
When I saw the headline, my first thought was “they did the RICO!” And I’ve never missed your Twitter feed more 💔
Come to Mastodon, Mary-Katherine. We have Popehat. (@Popehat@mastodon.social)
I’m there I just never remember to use it!!!!!
You can tell Mastodon to "Notify me when <user> posts". Not a guarantee, but can help.
The article is very helpful in making a distinction between overt Acts evidencing the conspiracy, and criminal Acts committed within the conspiracy. It makes a solid case that the indictment would have promoted public understanding if it had clearly distinguished between those two things. At the very least, it helped me understand it but there are at least 299 million other Americans who need more information.
Speaking as a former chess player, one of the things you learn is that when you're ahead and basically have a won end game, simplify - do not complicate. And when behind, make things complicated in hopes that your opponent will make a mistake.
Seems to me that Willis had a clear win if she kept it simple, but by filing an exceedingly complicated indictment she opens the door to Trump's primary litigation strategy: delay, appeal, appeal the appeal, enter a motion for whatever will drag things out the longest etc. And as Ken points out, there are both good-faith and bad-faith objections that can be raised, with the problem being that some of the bad-faith objections will still be judicable and serve to delay the process.
I'm highly skeptical that this case will get to a verdict in Trump's lifetime. Granted, some of the defendants will cop a plea, and if that was the strategy it will likely be successful. But I doubt that is the point of the exercise.
Seems you’re taking points off for style?
I’d give her full marks however for actually indicating the (nearly) full cast of characters that tried to pull the coup.
No one else (except maybe MI AG) has done that. Certainly not Jack Smith/DOJ.
(At least not yet, but at the pace DOJ is going with the prosecution of the political leaders of the coup, I’m not exactly holding my breath...)
Style counts to the extent that helping the public understand the situation is a value
Well, that would be true in a general sense, but in this case? What is there really left to "help the public understand the situation?"
After the Jan6 Cmte hearings, all the reporting from WaPo, AJC, NYTimes and WSJ, if people don't understand - or more to the point, don't want to understand - then Shakespeare or Cicero could have written it and it's STILL not going to "help them understand," because they don't WANT to understand.
As I said, I think she did the country a service by indicting all the president's men (and women) in this coup. NO ONE else has done it.
(I keep hoping J Smith will come back and do it, but quite frankly, I think the DOJ is way too timid on the political actors - Look at Roger Stone. the video that was released where he's laying out the fake electors scheme? Why isn't this guy and Jeff Clark, and Eastman and others in Fed lock up?)
You should consider WHY no one else has done the RICO.
Obtaining a conviction is hard work. If even one juror holds out, you get a mistrial and then what? Start over from the beginning after a year or more of litigation? Back away from the prosecution altogether? So a prosecutor focused on obtaining a conviction keeps the case as simple and straightforward as possible. You're less likely to lose the jury, and you create a trial record that is easier to defend on appeal.
Ms. Willis' case is anything but simple and straightforward. it involves a likely unmanageable number of defendants, some of whom face criminal liability under RICO for alleged acts which are fairly routine examples political work. It involves some defendants who have strong arguments in favor of federal removal, and possible dismissal, e.g., pursuant to the supremacy clause. The procedural obstacles alone are headache inducing. Plus, many of the people included in the indictment (like Mr. Meadows) would be FAR more valuable as witnesses for the prosecution than defendants with a constitutional right to not take the stand.
I also think one shouldn't underestimate the political/social downside if this (to mix my metaphors) shitshow goes down in flames.
So what's the alternative?
Don't prosecute these people? Really?
Remember, Trump didn't do this alone, and a future would-be tyrant won't either. They'll have help.
It needs to be made very clear to those that would help that doing so isn't cost free. To have a system whereby if you try a coup and you win, well, you get to make the rules, but if you lose...nothing happens? You get to keep trying?
See the problem here?
I never said it was an easy prosecution, but neither was prosecuting 1000+ people for Jan 6 nor was prosecuting the Proud Boys/Oath Keepers for sedition.
What were people saying about the sedition charges before the trials? Oh yeah...very difficult to prosecute...very rare...
I share your outrage. Don't mistake my criticism of the strategy with resisting the goal of accountability.
I do like how the DOJ has been handling the Jan. 6 prosecutions. Each very focused on the evidence that the individual defendant in the courtroom did these specific criminal acts. It is slow a painstaking work, and it built up an incredibly strong foundation of evidence for the eventual trials and convictions of people like Mr. Rhodes and Mr. Tarrio (who is likely to spend decades behind bars).
This mountain of evidence is piling up high enough that it is now touching the feet of people like Mr. Clark, Mr. Chesebro, and Mr. Eastman. And I very much hope the intellectual architechs of the coup are nearing a date in federal court as defendants. I just don't think this sprawling case is going to work.
PS. Jack Smith doesn't have to do RICO on the coconspirators. He can charge them with any number of crimes.
Where are those charges?
If the style issue in question is including many acts that are not crimes in themselves, people can legitimately question that while understanding the criminal nature of Trump and his crime family.
If people can't be bothered to understand the difference between an actual crime and an overact, well...
It was pretty obvious to this non-lawyer reading the indictment that some of the acts were - by themselves - legal, but were clearly part of the pattern of the overall conspiracy, and that some of the acts were crimes. It said which were which in the indictment.
I can't help those who don't want to read the indictment, nor take a moment to actually understand what is being done, but just want to tune in to their favorite bloviator and take their word for it.
As I said, Cicero himself could have written it - those people just aren't going to care.
If you're complaining about a public official explaining things to the public, well bless your heart
Agree. There is value to having someone pull the whole kit and kaboodle together under one heading. Despite her repetitious style, I think she's done a reasonable job of that.
Prosecutors also have an unfortunate habit of conflating bad, or at least unpopular, behavior that isn't criminal but is easy to prove with actual criminal behavior that is harder to prove or that the defendant may not have actually committed. The idea being that the jury will be so enraged by the former that they will conflate it with the latter and convict.
Willis has pulled some thing of the same sleight-of-hand in her indictment, although the target is the public at large rather than a particular jury. She has sexed up a rather dry recital of fraudulent electors with a bunch of salacious Trump quotes in order to guarantee maximum media coverage. It may not be good trial strategy, but it is excellent PR.
I take points off for style! She had months and months to draft this. It's the most serious (of two) state indictments ever filed against a former POTUS, and if she were able to pull this off, she'd be the greatest state-court DA in history. Her office couldn't even be bothered to proof-read closely enough to avoid duplicating or omitting numerals in the "Overt Act" count. If you're going to do a speaking indictment, you might as well make it sing; both of Smith's indictments are written with a clear voice. But this thing is jumbled, repetitive, and entirely undisciplined. It hurts her office's credibility, but worse, it's a MISSED OPPORTUNITY to educate the public.
And respectfully, do we actually know that she's named the full cast of characters? Or just some characters we hadn't focused on before? We don't know what we don't know.
This is a great piece for many reasons. One of the reasons it is great is that it underscores an important rule, namely:
*To have a legitimate opinion about any legal matter, you must first know something about the law.*
I fear that the importance of this rule is not sufficiently appreciated in 2023.
I get the criticism of Willis, her pleadings, and what you suggest are gratuitous hits on Trump. First, REALLY?? He was trying to overthrow the government. Secondly, many of the remarks cited help the finders of fact determine intent. They may be 1st amendment protected but if they help explain the predicate act of threatening a public official.
Finally mixing up overt acts with criminal allegations, make over all scheme better understood. You want the jury to understand the scheme
I don’t think it’s possible to make a gratuitous hit on Trump. What’s gratuitous is loading up the overt acts with tweets, speeches, media stuff, etc. when it doesn’t move the ball and isn’t necessary, but just heightens the concerns about the First Amendment.
Thank you for again for your talent at helping us non-lawyerly people better understand some of the nuances and terms of art in this indictment too. It’s a rare and valuable talent to reveal the basics of complicated ideas. Or maybe I appreciate it more because I can’t do it myself? Kind of feel like a “Thank You For Your Service” is justified. You do good work.
I get your point. Do u get mine?
Everyone gets your point.
https://m.youtube.com/watch?v=PDBiLT3LASk
And I wanted to say your explanation of the RICO statutory framework was excellent
should be fair enough to call it GRICO (since it certainly ain't FRICO).
but your video clip was, of course, priceless.
Thanks, Ken, for the clarification. Of course(?), I haven’t seen any *good faith* claim that X’ing, speaking, posting, whatever is now illegal. Still; this post is a real public service. Thanks again.
> Fulton County [D.A.] Fani Willis —
> notoriously fearless, particularly of cameras
I am strongly reminded of a quote from Jim Comey's book, concerning Rudy Giuliani: "The most dangerous place in Manhattan was between Giuliani and a microphone." (Paraphrased.) I hope the allure of publicity doesn't lead D.A. Willis to the same downfall in the end.
I read it because I wanted to understand the man and why he acted the way he did. I believe in a diversity of opinions, and understanding where and why those opinions come from. Your sympathies are unneeded and unwanted.
I think that's admirable. I also hope you checked it out of a library or borrowed a copy. I hate to think of that weasel getting royalties for being a weasel.
Until William & Mary canceled the legal ethics lecture he was supposed to give, I was planning to attend with a picket sign in a weasel costume. Found one on Etsy, really snappy.
The beauty of a democracy is we get to HAVE THIS CONVERSATION AT ALL!
Fani Willis sees CLEARLY the THREATS TO OUR CONSTITUTION HER CITIZENS AND PEOPLES THE RULE OF LAW AND DEMOCRACY!
That her style is a HAMMER & not a chisel is OK BY ME! Because the only thing those of us who aren’t blind want to see is the DESTRUCTION OF THE ENTIRE NETWORK OF THE CONSPIRACY AGAINST AND THE ATTEMPTED OVERTHROW OF OUR DEMOCRACY
Simple language is important to help citizens UNDERSTAND, but lay people may still not get the separation.
And old judge used to kindly come and give a training to newbies who wrote affidavits for his court.
And we understand clearly the story she told.
Love 💕 You
That her style is a hammer and not a chisel is not okay with me.
This is SUCH a missed opportunity. She could have narrowed her case to Trump, the people directly involved on his behalf in the Georgia attempts to overturn the vote and present fake electors, left the other states to themselves or the feds to try to police, and presented a relatively clean, triable case with a manageable number of defendants that might actually put a jury in the box before 2027.
I wrote elsewhere that if Smith's SDFL Mar-a-Lago documents case is a rifle-shot, and the Smith's DC conspiracy case is a shotgun blast, and the Alvin Bragg case a dud firecracker, this case is an ammunition locker explosion. It might blow up somebody or -bodies, but I'm not sure DA Willis won't be among them.
Great piece, Ken. I too felt like the DC indictment was a lot tighter, laying out the difference between "these things fed the conspiracy" and "these things *were*" the conspiracy. Maybe it should never be the RICO.
Thanks for the clear explanation. It's not short, but I've learned that most legal explanations can be good or short, but not both.
Thank you for a clear and helpful analysis. It's too bad that the GA indictment couldn't be similarly clear and helpful.