What’s become of the presumption of innocence?
The question is an urgent one due to Fulton County District Attorney Fani Willis’s election interference case against Donald Trump and 18 others, which she has dubiously framed as a racketeering conspiracy.
Why has DA Willis invoked Georgia’s version of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which is typically applied to mobsters engaged in the familiar rackets of murder, extortion, trafficking in narcotics and stolen goods, gambling, prostitution and so on? Because there’s a giant hole in her case: the lack of a clear crime to which Trump and his co-defendants can plausibly be said to have agreed.
Let’s put RICO to the side for a moment and focus on conspiracy. Very simply, a conspiracy is an agreement to violate a criminal statute. It takes two to tango, so a conspiracy must minimally involve a pair of people. Beyond that, though, it can involve three people, 19 people, 100 people — any number. Regardless of how many people are said to be implicated, however, there is always one requirement: There must be a meeting of the minds about the crime that is the objective of the conspiracy.
If prosecutors allege a large-scale conspiracy, various conspirators may play different roles. In a conspiracy to sell cocaine, for example, some people may handle importation; others handle sales or security, and still others, accounting and management of the cash proceeds. But what unites these role-players in a single conspiracy is the criminal objective — in our example, to sell cocaine. If there is no agreement about a crime, there is no conspiracy.
Usually, this is not a problem for prosecutors. While constitutional due process guarantees that every American is presumed innocent, it also dictates that no American can be charged with a crime and forced to stand trial unless there is probable cause that a crime has been committed.
As a result, even though prosecutors bear the burden of proving the case beyond a reasonable doubt before there can be a conviction, we can easily understand why the defendants have been charged. If they are charged with conspiracy, the indictment will clearly state the crime they allegedly agreed to commit — e.g., drug trafficking, bank robbery, murder, extortion. Whatever the objective crime may be, we understand that the prosecutors, the police, and the grand jury have established to the court’s satisfaction that there is enough evidence to establish probable cause that the alleged conspirators agreed to commit a crime.
Willis’s indictment. She alleges that the 19 people named in her indictment are guilty of conspiracy because they agreed to try to keep Donald Trump in power as president — specifically, to “change the outcome of the election in favor of Trump.” Maybe they shared such an aim, maybe their 19 minds met regarding that objective, but in and of itself, trying to reverse the result of an election is not a crime. You may have noticed that neither Al Gore nor Stacey Abrams was ever led away in handcuffs.
To be clear, it’s entirely possible that people can perform criminal acts in the pursuit of a lawful objective. If they do, they may be charged with those crimes — and if the crimes are serious, they should be charged. That, however, does not mean their overarching objective was a crime. And again, if you don’t have two or more people agreeing on an objective that is a crime, you don’t have a conspiracy.
Willis tries to get around this inconvenience in two ways, neither of which works.
The first is a tautology: She conclusively asserts, on page 14 of the indictment, that this was a “conspiracy to unlawfully change the outcome of the election in favor of Trump.” That is, the lawful objective of changing the election outcome somehow becomes unlawful because she invokes the apparently talismanic word “unlawful.” But there is no crime of unlawfully trying to change an election outcome — not in Georgia law nor any other American law.
Trying to change an election outcome is legal; the end doesn’t become illegal if pursued by illegal means — instead, those illegal means can be charged as crimes. But there is no conspiracy unless the objective itself is clearly a crime. You don’t see prosecutors alleging, say, that defendants were in a “conspiracy to unlawfully” commit murder or robbery. Murder and robbery are crimes. If two or more people agree to commit murder or robbery, that is an agreement to commit a crime — a conspiracy. To the contrary, an agreement to try to reverse the result of an election is not an agreement to commit a crime.
Willis thus turns to her second artifice, the RICO conspiracy charge. RICO is unique in the criminal law because, instead of targeting crimes, it targets entities — associations of people, referred to as enterprises — that generate revenue through the commission of crimes. The offense is not so much the crimes (referred to as the pattern of racketeering activity), but the enterprise (such as a mafia family) that carries out the crimes. A RICO conspiracy is an agreement to participate in such an enterprise — to belong to the group and sustain the group so that it continues to generate power and profits.
That doesn’t fit the Georgia case. Trump and his 18 co-defendants did not intend or desire to belong to a group, or even see themselves as a group. Their objective allegedly was to maintain Trump in power, not to participate in an enterprise. And unlike a RICO enterprise, the 19 defendants had no intention of sustaining their group — if it even was a unified group. Their only objective allegedly was to keep Trump in office. By Jan. 20, 2021, that objective was either going to succeed or fail, but whatever the outcome, the group would then cease to exist as such. By contrast, a real RICO enterprise must be a continuing threat — one that labors to preserve its existence and operations.
The defendants indicted by Willis did not have an overarching agreement to commit a crime, and they were the antithesis of a RICO enterprise. If, as the DA alleges, they committed discrete crimes in the effort to reverse the election result — such as forgery, false statements, solicitation of others to commit felonies, or hacking into election systems — then they should be prosecuted for those crimes.
But an agreement to do something legal — to reverse the result of an election — is not a conspiracy. And if the presumption of innocence means anything, we must presume people are innocent if the prosecutor fails to allege that they agreed to do something that was actually a crime.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at National Review Institute, contributing editor at National Review, and a Fox News contributor.