Wednesday, August 16, 2023

Part I

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A Fourth Indictment and Endless Questions: RICO, Criminal Conspiracy and the Law of Unintended Consequences

As was predicted, yesterday, a grand jury in Atlanta, Georgia handed down the fourth criminal indictment against the former President of the United States, Donald J. Trump. I say “as expected” because there had been a great deal of confirmation, speculation, conversation about the fact that the grand jury was meeting and the prosecutor in this case, the local district attorney, Fani Willis, had announced that she was close to bringing the indictment requests to the grand jury.

At the end of the business day yesterday, it appeared that nothing was going to happen in the course of the rest of the day simply because the grand jury had been hearing testimony and had basically gone into recess, but then just almost at the midnight hour, the release came of a massive criminal indictment. Massive in this case, meaning it is more complicated, it includes more charges than just about any of the other indictments and indeed most of the other indictments related to Donald Trump put together.

The former president was himself charged with 13 crimes, and what’s also notable about this indictment is that some of the persons referred to as unindicted co-conspirators in the federal indictment were not unindicted in this case, they were indicted specifically. This includes many of the most famous members of the Trump legal team, including former New York Mayor Rudy Giuliani, who’s also, we need to remember, a former U.S. attorney, former lead federal prosecutor in what’s often referred to as the most important of the districts of the entire Justice Department, and that would be the Southern District of New York. You look at the fact that it was not only Rudy Giuliani, it’s also John Eastman, former law school professor, law school dean. You just go down the list. Also included in this indictment is Mark Meadows, former member of Congress and more importantly in this case, former chief of staff to former President Donald J. Trump.

Now, the conversation politically has gone pretty much as expected. Those who are the president’s friends have made very clear they see this indictment as just another form of political prosecution, even persecution. And yet the political enemies of the president, and this would include most people in mainstream media in terms of this response, they’re just saying what they have been saying, which is that Donald J. Trump was guilty of criminal acts and needs to face the justice system for those acts. You have a deep division in the United States. That’s nothing particularly new, but that political division right now is a division which isn’t exact in terms of say red-blue America, but is still overwhelmingly red-blue America when it comes to whether or not these indictments are justified, even necessary, or whether they are just further acts of judicial misconduct and political action.

The former president’s made his statements very, very clear, even to the point of being warned by a federal judge that he needs to back down for making so many of these public comments. It is very interesting to note that right now when you look at former President Donald Trump, he is not only the only former chief executive of this nation to face a criminal indictment, but he’s doing so now in terms of four major indictments, one which is local in New York, two that are federal and now one that is a series of state charges. I say a series of charges because this is a massively complex indictment handed down by the Fulton County grand jury yesterday there in Atlanta, and it accuses the former president, indicts him on 13 different charges.

When it comes to the other persons charged in this case, covered in this indictment, various numbers of the charges. It’s so complex, you have to have a chart of all the people, then you have to have a chart of all the charges. You have to know how many people were charged with how many of these offenses. You can just imagine how complex this is going to be, but Fani Willis, the district attorney, says that she wants to go to court on trial within about six months and she wants to try all of the defendants together.

Now, that just points to something that is a further issue of what’s unprecedented in this case. You’re looking at so many indictments, so many prosecutions, you’re looking at so many court processes, court dates that it’s going to be virtually impossible for these indictments, these trials, these legal proceedings not to collide with one another. Now, that’s something the American people aren’t going to have any say in, but it is going to make the 2024 presidential race not only very complicated but absolutely unprecedented.

Now, my purpose today is to think through some of the issues that are not so much at the focus or at the center of discussion in the larger world. The larger world wants to reduce this to two immediate issues. One of them is simply salacious headlines, the other is just politics. Who gains, who loses, who’s trying to do what to whom. We really are looking at a complex situation. There were those who said once the former president was indicted, his political prospects would basically disappear, dissolve, evaporate. That hasn’t happened. As a matter of fact, his support has increased and so was his fundraising in light of these indictments. But we are looking at a fourth major indictment and the indictment coming from Fulton County, Georgia does raise a host of issues that Christians really do need to think about. Let’s just step back.

First of all, what’s an indictment? The word is being used so much and I hear even people who are using the word, use it in such a way I’m not sure they know what it means. An indictment is simply an official list of crimes alleged against an individual that is to lead now to prosecution. It’s not the announcement of an investigation. The investigation comes before the request for the indictment. Who hands down an indictment? Well, a grand jury in this case. Who requests it? The prosecutor. That’s an important reminder of due process in terms of our legal system. The prosecutor will prosecute the case, but the prosecutor cannot in the prosecutor’s own authority, bring the indictment; that requires the involvement of a grand jury. Who’s a grand jury? What’s a grand jury? It’s a standing jury of some duration made up of citizens and they are assigned one of two things: either basically to sit for normal cases that are to be brought before a jurisdiction, such as Fulton County, Georgia. They consider, especially when it comes to felonies, whether or not indictment should be handed down.

In most cases, these are pretty routine. In other cases, they can be very complex, very questionable, they can be very much contested. But there’s another kind of grand jury, and this is an especially impaneled grand jury and that’s a grand jury made up of citizens who are put on this jury in order to hear evidence and to decide whether or not the move of prosecution is justified in a specific set of crimes with a specific set of people or at least a specific set of circumstances. So you have a grand jury there in Fulton County, that grand jury has to make consideration of charges for armed robbery, for any number of things, any number of crimes. When it comes to this, especially in panel grand jury, it has a specific context, a specific problem, a specific suspicion of criminal activity that is the impetus for why this special grand jury is impaneled.

The grand jury has basically now done its job, at least in terms of these charges, these individuals, and now the prosecutor bears the responsibility. Having proved at least to the satisfaction of the grand jury that the indictment should be handed down, it is now the prosecutor’s responsibility to prove these claims in court. Remember that the American justice system is predicated upon the assumption of innocence for the defendant. The defendant classically, constitutionally, does not have to prove innocence. Rather, the prosecutor, in this case, operating on behalf of Fulton County, on behalf of the state of Georgia, the prosecutor has to convince that jury, that trial jury of the guilt of the defendants.

This is going to be a very long process and it’s going to be a politically controversial process, and that’s an understatement and we all know it. It is going to be explosive, but we do need to remember why due process of law, why the rule of law is important and it’s going to be educational for Americans who may be mostly interested in the controversy, mostly concerned about the politics. It should be at least interesting to Christian citizens to think through what it means to have a system of law, what it means to honor the due process of law, which means you don’t do shortcuts, you don’t violate legal principles, you don’t skip over requirements. And further, the due process of law means that you’re not only honoring a structure, but you’re doing so knowing that it may be at one point publicly reviewed.

Now, there’s something else to think about, and this is also really interesting because if you look at the indictment that was handed down there in Fulton County, that indictment includes a large number of charges under what’s known as RICO. These are RICO charges, and that’s a very interesting story in itself. RICO means the Racketeer Influenced and Corrupt Organizations Act. Now, at the federal level, that goes back to a very big reorganization, reformulation of federal criminal law. In 1970, what was the purpose of establishing RICO? Again, the Racketeer Influenced and Corrupt Organizations Act. It was adopted in order to give the federal government additional ways to prosecute, to bring charges against criminal organizations. Most importantly, what is known as the mafia. The name really tips things off. That is Racketeer Influenced and Corrupt Organizations Act. It enabled the federal government to prosecute known criminal organizations for activities that were basically the result of a conspiracy of an organization. The term “corrupt organizations” here is really important. Racketeering, having to do with the operation of such a corrupt or criminal organization.

One of the problems that federal authorities had in terms of early attempts to prosecute crimes undertaken by organized crime and specifically those that were known as mafia organizations, one of the problems faced by prosecutors and by police is that it was sometimes difficult to tie one crime to another. We’re talking about organized crime. Well, there wasn’t a law adequate at the time to criminalize the organization itself, and so that’s what RICO came into play. So remember, here’s what’s really important. RICO was intended at the federal level to give federal authorities greater ability to go after corrupt organizations, otherwise known basically as mafia families, the mob, you go down the list.

But in retrospect, the RICO statute that was adopted in 1970 arguably had a bigger effect in making possible federal charges against persons who weren’t involved in say, organized crime that weren’t involved at least in any kind of criminal organization such as the mafia, they weren’t part of a crime family, but federal prosecutors had been incredibly successful in using RICO to say that persons conspiring to carry out illegal activity that is federal offenses, they can be charged not only with those discreet offenses, but with a pattern covered by the criminalization of organized crime and racketeering.

Now, that leads to another issue, which is the word “conspiracy”, criminal conspiracy. It’s used in this indictment and it’s one of those terms you hear out there. Well, what exactly is a criminal conspiracy? Now, some people would say those two words put together are redundancy. If it’s a conspiracy, it’s a criminal conspiracy. If it’s a criminal act, then it’s a conspiracy. Well, actually neither of those things is true. A criminal conspiracy requires both criminal intent and that is the breaking of a crime or the planned breaking of a crime and conspiracy, which means a plan, a secret plan to carry out this illegal activity. Now, the word “conspire” includes the Latin root there, C-O-N, con, which means with, which means you can’t have a conspiracy with one person. You might come up with an evil plan in your mind, but legally it’s not a conspiracy until you conspire with at least one other person to bring about that criminal activity.

The other word is also important. You could have two people. Again, you have to have at least two to have a conspiracy, and they may conspire to do something. They want to remain hidden. They might conspire to do something that’s morally wrong, but morally wrong does not always mean illegal. And so a criminal conspiracy requires at least two people and a secret plan to carry out a violation of the law and specifically a violation of the criminal law that makes such a plan and the activities involved in such a plan, a criminal conspiracy. So when you hear that term, it’s not something that can just be thrown around as in some kind of evil plan. It requires specific facts that fit the case of a criminal conspiracy. That’s the language also that shows up in this indictment. Again, did one take place? That’s up to the prosecutor to prove.

From a worldview perspective, there’s just a lot to consider here. Number one, we understand the importance of law and of order. We understand the importance of the due process of law. We understand the importance of the American system of law in which you have, for example, the presumption of innocence, and you have trial by jury, a jury of one’s peers. There’s so much that’s involved here, but there are so many other issues here to keep in mind. Remember, the Christian worldview begins with human beings made in God’s image, then sending against the creator with human sin ricocheting throughout all of human existence. There’s nothing human beings touched that is untainted by sin and God’s judgment upon sin also fell upon the entire created order such that, as the scripture says, “The created order is crying out.”

And so we have natural evil, we have human evil, courts, at least when it comes to the criminal courts, are not about natural evil, they’re about human evil. And here’s something else for us to keep in mind. There are things that are wrong, morally wrong that are not crimes, and there’s the distinction there. It’s an important distinction. One of the responsibilities of any society at any time is to decide just how far it intends to criminalize what are understood to be bad acts. Not all bad acts are criminalized, but some are. The other thing we need to keep in mind is that the law often comes with unintended consequences.

When Congress put together RICO at the federal level in 1970, and by the way, 33 states have their own RICO statutes, they are generally similar, but in some cases can be weaker, in other cases, stronger than the federal law. In the case of Georgia, absolutely germane here, the state of Georgia has a RICO statute and it’s arguably stronger even than the federal statute. But my point is this, even when you adopt that kind of legislation, you establish something like the RICO Law–Racketeer Influenced and Corrupt Organizations Act–the law’s going to come with unintended consequences. It was intended to put this law into place to go after organized crime at every level, and this is especially directed towards the organizations that were then well-known, the mafia, the mob, you go down the list. But it turns out that RICO became a very powerful tool in the hands of prosecutors for crimes that otherwise would’ve been considered political crimes or would have to have been treated as completely separate acts without any particular grand conspiracy that’s provable in court in order to bring those charges against them.

When it comes to RICO, everything changed and so predictably, as you look at the indictment handed down in Atlanta so late on Monday night, it really is steeped in the theory of the RICO Act. That’s not to say RICO has not been effective in its original purpose, it’s initial purpose of putting together a law that would allow the prosecution of organized crime, even at the level of the organization. The Bonanno crime family, it was subject to a very effective RICO prosecution as was the Gambino crime family. But we are looking at the law of unintended consequences. For good or bad, the reality is RICO is now being routinely used for crimes that were never a part of the original intention.

Part II

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Is This One Indictment Too Far?: Big Issues Come to the Surface When Considering the State Charges Brought Against Former President Trump

Now, from a Christian perspective, looking particularly at this indictment against former President Donald Trump, given all the things that are involved, it’s interesting to look at the breaking of ranks. When someone breaks ranks from a strong supporter of President Trump, former President Trump, saying something like, “Well, you know, these are pretty serious charges, we’re going to have to see how the justice system works these out.” That’s notable because the routine expectation is that the friends of the president who’ve been staunch defenders until now will just continue to say, “This is just a political prosecution. There’s nothing to it,” et cetera, et cetera.

It’s also interesting when there’s someone who’s been on the liberal side of the equation and is very much, well, let’s just say not among the friends of Donald J. Trump who says you know, “We might need, even from our side of the equation, to have some second thoughts about whether or not this indictment is a good idea.” I think it’s to the credit of columnist Ruth Marcus of the Washington Post that very shortly after the indictments were handed down there in Fulton County, she issued an article published at the Washington Post under the headline, “Why a Georgia indictment of Trump might be one too many.” She probably didn’t gain any friends on the left by writing this article, and she makes very clear she thinks that the former president is guilty of criminal acts. It’s very clear she believes that, but she says, nonetheless, there are legitimate questions to be raised about this Fulton County indictment. Number one, what sense does it make to have largely the same acts being criminally prosecuted at the federal court level and at the state court level?

Now, Ruth Marcus is very knowledgeable. She comes back and says, “Look, that is not constitutionally wrong. That’s not an unconstitutional dual prosecution.” Interesting point to be made there, by the way, affirmed by the U.S. Supreme Court: if you in a local jurisdiction, let’s just say wherever you are, I will not use Georgia, let me use Wyoming. Let’s say you’re standing in Wyoming and you commit a crime that is a crime both according to the law of Wyoming and it’s a crime according to the law of the United States of America. Did you commit one crime or two? Well, the argument could be that you committed two crimes, you broke a federal law, you broke a state law. The Supreme Court has said that both of those jurisdictions have a right to press that case in the due process of law, and it’s not a violation of the Constitution. It’s not double jeopardy if you have prosecution at both the federal and the state level.

Now, here’s something else to note. When you do have these dual prosecutions, it’s interesting that I think most of us are more familiar with the case in which you have a local or a state charge brought, and only later is there are federal charge brought. Now, I think the reason for that is that the federal prosecution is often seen as a backup, so if the state or local prosecution fails, then federal prosecutors can step in. This is almost exactly the opposite. That does make it interesting. So in this case, the argument coming from the defenders of this indictment are, it’s necessary because there might be a problem in the prosecution of this case at the federal level, but we’ll still have the backup at the state level.

Furthermore, when it comes to those who want a criminal conviction of the former President of the United States, they want not one bite of the apple, but two. The President of the United States has rather vast pardon power when it comes to federal crimes, but that does not extend to the state courts, and here again when you’re looking at Georgia, a couple of things to understand, Georgia has a very powerful RICO Act. Georgia has a very, very restrictive pardon power.

But I mentioned Ruth Marcus. I want to go back to another point she made. She said, “Look, I understand why the dual prosecution will make sense to people.” But at the same time, she says, “You have to wonder if this is just one indictment too far.” She makes a very interesting point.

Among the arguments coming from those seeking former President Trump’s prosecution in court, at least a part of what is also coming is the fact that they’re arguing that the states have every right to bring these charges. Again, you have a federal crime, you have a state crime. Arguably, that’s two crimes. But then Ruth Marcus writes, “But there is a concern about piling on here. Why stop at Georgia? The federal indictment sets out conduct in six other states in which Trump and his co-conspirators allegedly sought to overturn the election results. Will he be prosecuted in those states too? At some point, it becomes unfair,” Ruth Marcus writes, “Yes, even to Trump, to go state by state. That’s why the federal approach is preferable.”

Because of the political context, the national chatter about this is not going to let up for a very long time. We’ll return to this when we think there’s something important to address, and there are worldview considerations that demand and deserve our attention.

Part III

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Zoom Requires Employees to Return to Work at Headquarters: How’s That for Irony?

I want to end by looking at another worldview issue, and that is our human need for contact. This is something that is a part of the Imago Dei. It’s a part of how God made us. He made us not only, first of all, as the only creature made in His image, but he made us as social creatures, and thus, it is not good that man should be alone, and that’s pointing to marriage, yes, but it’s also pointing to a general principle that we need human interaction.

Now, a couple of things have come to interrupt that in the course of recent years. Number one, the technological revolution, which means that you can communicate by so many other means and there’s some good things that come out of that. You can FaceTime with your grandchildren. That’s wonderful. But at the same time, you can start to replace human interactions with the technological digital interactions. They’re not the same. The second thing that happened, of course, is COVID-19. But the fact is that after COVID was over, there are a lot of people who don’t want to go back to work. They don’t want to go back to the workplace. They don’t want to go back to the classroom. They don’t want to go back to human interaction. Sadly, many of them haven’t gone back to church, and that’s not just a matter of misjudgment, that’s a matter of sin. But as you’re looking at this, you recognize it is also sometimes symbolized by a simple company and that company, in this case, you could say Zoom.

Zoom is a technology company that became basically a verb during the COVID-19 pandemic. Americans who never thought of using Zoom found themselves zooming pretty regularly. A lot of life moved on to Zoom, a lot of meetings moved on to Zoom. But here’s the Christian worldview point. The necessity of human interaction eventually shows itself. I mean, face-to-face interaction. That means in the room interaction. It means for families, at the dinner table, the breakfast table interaction. It means for churches, in the place of worship together interaction.

So as I come to a conclusion with that very much as a matter of our concern and reflection, let me just give you the news. Here is the news, as reported by The Week, “Zoom, the video conferencing company to help make it possible to work remotely during the COVID pandemic has ordered its employees back to the office at least two days a week. ‘An in-person workforce,’ Zoom said, will better enable Zoom ‘to use our own technologies, continue to innovate and support our global customers.'”

Turns out that some of the employees of Zoom aren’t pleased by being told they’re going to have to actually go into the workplace, into the office for face-to-face interaction and Zoom is saying, look, our business is non-face-to-face interaction, but the only way this business is going to work is if well, you have face-to-face interaction, meaning employees, so at least two days a week get back to the office. Frankly, that sounds really weak to me. Two days a week?

I guess the bottom line is just the absolute imperative that we need human interaction. I think we need it more than two days a week, but as for that formula, I guess I’ll leave it up to Zoom.