Horse 3221 - Pardon Me? No. The Law Doesn't Work That Way.

https://www.pbs.org/newshour/politics/read-the-full-georgia-indictment-against-trump-and-18-allies

Former President Donald Trump was indicted Monday on racketeering, conspiracy and other charges by a grand jury in Fulton County, Georgia, the result of a more than two-year investigation by District Attorney Fani Willis into potential 2020 election interference in that state.

Eighteen other people, including Trump’s former lawyer Rudy Giuliani and former White House chief of staff Mark Meadows, were also indicted, accused of joining Trump in efforts to unlawfully change the outcome of the election.

- PBS News Hour, 15th Aug 2023

I find it deliciously ironic that Donald J Trump, who during his presidential campaign to become the 45th President of the United States and who repeatedly got crowds at his rallies to chant "Lock her up" about his rival Hilary Clinton, is himself now facing ninety-one separate charges and may himself go to prison. Granted that these ninety-one charges are being brought in four four separate cases but the fact that there is even one against a presidential candidate and the leading candidate for the Republican presidential nomination at that, is nothing short of staggering. 

The latest and perhaps most interesting of the charges against Donald Trump was brought by Fulton County District Attorney, Fani Willis, in the State of Georgia on Monday, and relates to Mr Trump's now infamous phone call during his attempt to overturn the 2020 election in that state. Naturally Mr Trump has denied all wrongdoing, and both Mr Trump and the Republican Party have made accusations of political targeting but in this case the evidence being presented is already public; so he can not pretend that this is a stitch-up or a witch hunt. This is the epistemological question of whether or not a thing is a witch hunt, if you already know where the witch is.

Even as charges pile up left right and centre, and the idea that a former president can charged with felonies has ceased to be novel and has become almost routine, yet somehow he still manages to maintains or even improve his standing in 2024 polls. Ever since about February of 2015, his approval rating has bounced between about 36% and 42%. His statement that he could stand in the middle of 5th Avenue and shoot someone and people would still vote for him, has proven probably to be true.

The difference between Fani Willis' case in Georgia and other cases such as the Stormy Daniels hush-money charges in New York, and Jack Smith’s Federal cases relating to Mr Trump’s handling of classified documents and his efforts to subvert the democratic process in 2020, is that under racketeering convictions in Georgia, Trump if guilty, would be going to gaol.

Racketeering convictions are subject to mandatory minimum sentencing in the State of Georgia and as the United States and the various states have what is legally known as a "republican form of government" then such convictions under state law are only subject to state law. There is a subtle difference in the operation of law in Australian and the United States in that the Supremacy Clause of the United States Constitution, only applies to the reading of legislation, it does not apply in cases of judicial law; whereas here the Crowns, that is R, while different are related. In practical terms, this means that neither the president of the United States (by virtue of not being able to act) nor the Governor (by virtue of having a legal disability to act in this case) has the power to pardon state crimes. Presidential Pardon is inoperative here, and Gubernatorial Pardon is specifically denied here.

In that press conference on Monday which was replayed on ABC Radio National's "PM" program, Fulton County District Attorney, Fani Willis, said that: "The RICO charge has time that you have to serve. It is not a probated sentence."

To recap that infamous phone call, Trump demanded that the Georgia Secretary of State Brad Raffensperger "find 11,780 votes" to swing the state away from Joe Biden. Instead, Raffensperger pushed back against the then sitting President saying that "The most basic principles of a strong democracy are accountability and respect for the Constitution and rule of law. You either have it, or you don’t".

The actual charges which are listed in a 98-page indictment name Mr Trump as the leader of a racketeering scheme that included allies like Rudy Giuliani, Mark Meadows, and John Eastman, all of whom have also been charged but not unindicted as co-conspirators in the case. The 98-page document goes on to detail an alleged plot to breach voting machines, harass election workers, and goes on to explain the scheme by the Trump Reelection Committee to set-up, or accuse, or overturn electors in the Electoral College. The document also notes that similar attempts where made in Wisconsin and Arizona, and might hint at an unwritten invitation for those states to start prosecution cases and press charges of their own.

I personally find the whole idea that a President elected by the people should not be subject to the same laws as the country of the people who elected them there, both strange and dangerous. I live in a state which has an Independent Commission Against Corruption which although does not have the legal power to convict or remove, it does have a lot of sway and does create moral pressure for people to resign. I also live in a country which has inherited a Westminster tradition of government; which happens to include the legal case of R v Charles (1649), in which the High Court at Westminster Hall indicted and found Charles The First guilty of tyranny. That particular chapter in history ended with Charles losing his head while all about him, everyone else kept theirs.

Let's however assume for a second that Mr Trump is convicted and found guilty of several charges and sent to prison. There is nothing to prevent Mr Trump from continuing his campaign or being successful and winning the Presidency and then going to prison. There is nothing to prevent Mr Trump from being President while in prison or from the executive of the United States being conducted from inside the halls of a state penitentiary. The framers to the United States Constitution likely never imagined such a set of circumstances and changing the United States Constitution is notoriously difficult. 

So if all of this were to pass, in some kind of ultra bizarre Thirty Xanatos Pileup Gambit, in which irony is thrown against irony and common sense and sensibility is thrown into the furnace of sanity, can we finally stop pretending that we are suprised all the time? Because if a Presidential candidate and the leading candidate for the Republican presidential nomination at that, is charged, convicted, sent to prison, and runs the administration from prison, then that will truly be staggering. Or rather, it won't be. Nothing is staggering any more. Kings have lost their heads. Presidents have been found guilty and charged. Tyrants have been set on fire and thrown into a ditch. This President is yet to face the effects of the law.