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On 09 Nov 2023, Awkwen <nowomr@protonmail.com> posted some news:uijupt$2fa80$2@dont-email.me:

Democrats and their offspring will one day pay for these
indiscretions.

In their quest to sink Donald Trump, state prosecutors have expanded the criminal law dangerously far into the realm of politics, and have
threatened legitimate First Amendment activity. District Attorney Fani
Willis' use of the Georgia Racketeer Influenced and Corrupt
Organizations ("RICO") Act to charge a political campaign with
conducting a criminal enterprise makes innocent political activity into
fodder for prosecutors, all without providing defendants a clear guide
as to what conduct violates the law. While Democrats may cheer Willis on
in her effort to convict Trump and his hodgepodge of allies who sought
to overturn the results of the 2020 election, their triumph may turn to
regret when Republican prosecutors turn these tools on their own
political campaigns.

RICO prosecutions are not limited to organized crime families or gangs,
but there has to be an actual criminal enterprise and related criminal
acts to further the enterprise. This is true even in Georgia, whose RICO statute is broader than others, including the federal one, because it
combines a longer list of predicate offenses with a looser definition of "enterprise" and "racketeering." A Georgia RICO conviction is a felony
that has a statutory prison term of five to 20 years, a fine of the
greater of $25,000 or three times the amount of money gained from the
criminal activity, or both a prison sentence and a fine.

Right off the bat, the indictment's first alleged overt act against
Trump is his nationally-televised "victory" speech on the day after the election, which already goes beyond RICO case norms. Yet at the time of
the speech, there was insufficient information available as to whether
any voting fraud in Georgia had tipped the scales, no plan existed for alternate electors, and Trump seemed to genuinely believe that he won.
Trump's speech was protected under the First Amendment, which protects political speech, even if no one else believes the speaker, and even if
it contains false information.

Furthermore, while Georgia RICO forbids defendants to "acquire or
maintain, directly or indirectly, any interest in or control of any
enterprise, real property, or personal property of any nature, including money," no one alleges that Trump engaged in his post-election
shenanigans because he was trying to gain money or property or control
of a business. Moreover, unlike in a traditional RICO case, Trump did
not create or belong to a criminal enterprise, as traditionally known,
nor did he intentionally commit criminal acts for the purpose of keeping
that enterprise going for the acquisition or control of property, money,
or businesses. Instead, Trump wanted to be declared the winner of the
2020 election because he apparently genuinely believed that he won,
regardless of what some advisers told him.

The indictment also cites as crimes the legal advice that Trump
received. This sets a very dangerous precedent, because legal advice,
even outlandish or bad advice, should not be criminalized, especially
where the issues are novel and untested in court. For example, lawyers
in famous Supreme Court cases such as Brown v. Board of Education,
Miranda, Griswold, and many others argued against the existing precedent
and legal thinking of their time, and certainly they were not and should
not have been prosecuted.

Furthermore, it is quite possible that Trump's post-election lawyers'
misguided strategy to create alternate slates of electors and the legal
advice supporting it were based on two historical events: the 1876
Electoral College drama between Rutherford B. Hayes (R) and Samuel J.
Tilden (D), and the 1960 presidential election drama in Hawaii between
Richard M. Nixon (R) and John F. Kennedy (D). In 1876, Tilden won the
popular vote and 184 electoral votes, but Republicans challenged the
election results in Florida, Louisiana, and South Carolina, because,
they claimed, the Democrats engaged in election fraud and intimidated
Black voters. Hayes eventually won with 185 electoral votes, but the
Democrats had presented alternate slates of electors from Oregon, South Carolina, Florida, Louisiana, and Vermont, knowing that their alternate
slates from at uncertified or doubtful. No one was criminally charged,
nor should they have been, even though Tilden's nephew, William Tilden
Pelton, admitted that he tried to bribe local election officials in
Oregon, Florida, and South Carolina.

Similarly, in 1960, Hawaii Democrats challenged Nixon's initial win,
signed alternate elector certificates, and sent them to Capitol Hill,
even though JFK was not declared to have won Hawaii until later. Again,
no one was criminally charged and in fact the judge praised the
Democrats for creating and signing an alternate slate.

In fact, on November 4, 2020, while Pennsylvania was still counting
votes, Van Jones of CNN and Professor Lawrence Lessig of Harvard Law
published a CNN article citing these events and endorsing alternate
electors! Indeed, it's worth noting that after the 2016 election, the
Clinton campaign and allied groups such as Unite for America recruited celebrities like Martin Sheen to importune electors not to cast their
electoral votes for Trump; electors received death threats, harassing
phone calls, and hundreds of thousands of hostile emails. The Clinton
campaign also tried to request an intelligence briefing on foreign
election intervention in order to sway the electors with false
information; the Clinton team cooked up the phony "Steele Dossier" and
knew that it and other claims regarding Trump and Russia were false.
Anyone who thinks that Clinton or her campaign staff—an actual
organization or enterprise—should not have been criminally charged, as
they were not, must therefore also think long and hard about whether
Trump should be.

It may have been an irresistibly tempting part of District Attorney
Willis's calculus to file criminal charges against the leading
Republican presidential candidate, especially because Fulton County is
reliably Democratic and went for every single Democratic presidential
candidate since 1976. However, her over-broad indictment should serve as
a cautionary tale against twisting and distending criminal laws beyond
their norms. Prosecutors should recognize that what can be charged is
not always what should be charged.

John Yoo is a Professor of Law at the University of California at
Berkeley. He is also a Nonresident Senior Fellow at the American
Enterprise Institute, and a Visiting Fellow at the Hoover Institution,
Stanford University. John Shu is an attorney and legal commentator.

https://www.newsweek.com/democrats-are-using-criminal-law-fight-their-pol itical-battles-its-very-very-dangerous-1820619

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