OPINION: This article may contain commentary which reflects the author’s opinion.
Even though Fulton County, Georgia, District Attorney Fani Willis has managed to secure a couple of plea deals in her cases against 19 defendants charged with various legal violations following the 2020 election, a noted legal expert claims that the latest plea by Jenna Ellis proves that the DA has “wildly overcharged” in the cases.
Ellis, an attorney who represented then-President Donald Trump over claims that he lost to then-Democratic nominee Joe Biden due to election/vote fraud, pleaded guilty to a misdemeanor earlier this week and was sentenced to five years probation, 100 hours of community service, and a $5,000 fine. Additionally, she must write a letter of apology to Georgia residents.
But, according to former federal prosecutor Andrew McCarthy, writing in National Review this week, “Willis has hyped her prosecution of Donald Trump, Ellis, and 17 others affiliated with the Trump campaign as a racketeering-conspiracy case, depicting the former president as the head of an organized-crime enterprise.
He added: I have contended that Willis does not have a RICO case under Georgia’s analogue to the federal Racketeer Influenced and Corrupt Organizations Act of 1971.”
McCarthy went on to say that the group of people Willis indicted did not behave as an “identifiable criminal ‘enterprise’ as defined in RICO.” He also wrote that he believes Willis “lacks a single criminal objective as to which she can say all 19 defendants agreed,” a conspiratorial element required to prove a RICO case.
“It is not a crime to seek to reverse an election result — indeed, Georgia law provides for legal challenges to election outcomes,” McCarthy continued.
He then wrote:
What Willis has, instead, is evidence that some state criminal offenses — minor in comparison to those at issue in the typical RICO case — were committed in the course of the campaign’s schemes to overturn the 2020 election. Consistent with that, Ellis is now the fourth defendant to plead guilty in recent days. None has pled guilty to the RICO conspiracy that Willis alleged in Count One — the overarching “offense” that frames her prosecution.
McCarthy said it is “telling” that none of the four defendants has pleaded guilty to a RICO violation.
“Ordinarily, prosecutors require the first cooperators in a major case to plead guilty to the major charges, offering them sentencing leniency in exchange for their testimony against other defendants,” he wrote. “Those kinds of pleas convince the public that there is a strong case and put pressure on other defendants to plead guilty.
“But not only have none of Willis’s cooperators conceded that there was a RICO conspiracy, much less pled guilty to it; none of them faces even a single day of imprisonment,” he added.
Following Willis’ indictment, McCarthy pointed out that he argued Ellis’ case should have been dismissed. In addition to the “deeply flawed RICO allegation,” the former Trump lawyer was only charged with the state crime “of soliciting the commission of a crime.”
“As Willis has pled it, I believe this charge…is constitutionally infirm,” McCarthy wrote. “Willis’s theory is that Ellis and several others (Rudy Giuliani, John Eastman, and Ray Smith) committed it by petitioning the Georgia state senate, at a subcommittee hearing on December 3, 2020, to appoint a Trump slate of electors (as an alternative to the Biden electors whom the state did certify after Biden narrowly won the popular vote in Georgia’s presidential election).
“The solicitation charge is untenable because (a) the Constitution guarantees the right of Americans to petition government, and (b) even if Georgia legislators had wrongly appointed an alternative slate of electors, which they didn’t, it would not have been a prosecutable crime,” McCarthy argued.
“While the media–Democrat complex is salivating that Trump will be sunk by the cooperation of Ellis and the other three defendants who’ve pled out to minor charges with no jail time in recent days (Kenneth Cheseboro, Sidney Powell, and Scott Hall), that seems like wishful thinking,” McCarthy added.
“Again, none of the defendants has pled guilty to racketeering nor provided any indication that Trump and his remaining co-defendants violated RICO.”