Left: Rudy Giuliani, an attorney for President Donald Trump speaks as President Donald Trump smiles during an event Trump National Golf Club, Friday, Aug. 14, 2020, in Bedminster, N.J., with members of the City of New York Police Department Benevolent Association. (AP Photo/Susan Walsh). Right: Rudy Giuliani (via Fulton County (Ga.) Sheriff’s Office).
Former President Donald Trump on Monday adopted motions by two of his Georgia co-defendants, including one filed by Rudy Giuliani and two by attorney Ken Chesebro, as part of a bid to toss out the Fulton County racketeering (RICO) indictment.
The Giuliani motion to quash asserted that the allegations in the Fulton County grand jury indictment are fatally defective as drafted, and thus incapable of supporting a conviction.”
Arguing that the indictment failed to allege the elements of the underlying criminal offenses, failed to “identify specifically the ‘predicate acts’ Defendant himself is accused of engaging in and will be used to prosecute him,” failed to to provide “fair notice as to what he is called upon to defend against in a Fulton County prosecution,” and failed to “adequately allege ‘the essential facts’ constituting the conspiracies and/or racketeering activity charged, so as to protect against double jeopardy.”
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Giuliani — and Trump by extension — argue that the Georgia case is on a collision course with the Jan. 6 federal indictment secured by special counsel Jack Smith in Washington, D.C., so much so that double jeopardy issues are a real threat:
Moreover, this Fulton County indictment does not limit the conduct charged to events occurring in Fulton County, or even in the state of Georgia. Instead, it includes an array of acts and conduct which allegedly occurred throughout the country and have nothing to do with this purported racketeering conspiracy. In fact, the indictment here seems to be charging a violation of the federal RICO statute, much like the one alleged in the indictment returned in Washington, D.C. In so doing, the state is essentially acknowledging, regardless of the validity of the federal allegations, that the events charged here are not a racketeering enterprise in Georgia at all, but are instead, at best, a predicate act to a purported national scheme with the enterprise itself, if one exists, being in the nation’s capital.
Giuliani said that a “plain reading” of the indictment makes it “impossible to know how these Defendants are alleged to have breached their legal authority to challenge the election results in Georgia, and/or exercise their First Amendment right to express their opinions as to the legitimacy of those results, until the evidence is introduced at trial.”
Slamming the indictment as “not perfect in form and substance,” Giuliani reasserted his ask of Fulton County Judge Scott McAfee to either quash the indictment or order up an evidentiary hearing on the issues raised.
“Wherefore, for the reasons set out herein, Defendant moves this Court to quash the indictment against him, as it is not perfect in form and substance, fails to provide sufficient notice as to what he must defend against at trial, and the pleadings in said indictment are insufficient to protect him from double jeopardy in a separate prosecution,” the motion to quash concluded. “In the alternative, Defendant requests the Court set a date for an evidentiary hearing wherein the state can attempt to establish why the relief prayed for should not be granted.”
Left: FILE – In this Friday, Jan. 20, 2017, file photo, Donald Trump is sworn in as the 45th president of the United States. (AP Photo/Matt Rourke, File). Right: FILE – President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington, Jan. 6, 2021. (AP Photo/Evan Vucci, File). Inset: booking photo of Donald J. Trump, via Fulton County (Ga.) Sheriff’s Office.
The former mayor of New York City, who made a name for himself as U.S. Attorney using RICO statutes to prosecute the mafia, is accused of 13 offenses, including: solicitation of violation of oath by a public officer, false statements and writings, conspiracy to commit impersonating a public officer, conspiracy to commit forgery in the first-degree, conspiracy to commit false statements and writings, conspiracy to commit filing false documents.
Trump also embraced the Ken Chesebro motion to dismiss under the Supremacy Clause of the Constitution and Chesebro’s demurrer as to the overarching charged RICO offense, claiming the indictment is “beyond the ambit” of Georgia’s RICO statute and “fails to allege a nexus between the enterprise and the racketeering activity as required to survive a demurrer.”
The grand jury indictment alleged that Giuliani, John Eastman and Chesebro, the latter two of “coup memo” infamy, “on and between the 6th day of December 2020 and the 14th day of December 2020, unlawfully conspired to cause certain individuals to falsely hold themselves out as the duly elected and qualified presidential electors from the State of Georgia, public officers, with intent to mislead the President of the United States Senate, the Archivist of the United States, the Georgia Secretary of State, and the Chief Judge of the United States District Court for the Northern District of Georgia into believing that they actually were such officers.”
Ken Chesebro (Fulton County Jail)
The Chesebro motion to dismiss, citing preemption under the Supremacy Clause, asserted that alleged conduct that occurred after Dec. 8, 2020 — the “Safe Harbor” deadline — can be addressed by federal law alone, not state law:
Thus, any action taken after December 8, 2020, if actually illegal, would be in violation of federal law and subject to the Supremacy Clause; wherefore, the State’s authority to bring any criminal charges would be null and void. In other words, a State’s authority to determine who its valid Presidential Electors are reverts back to Congress after the Safe Harbor deadline. Once that authority reverts back to Congress, federal law, and only federal law, governs any and all conduct that occurs after the December 8th Safe Harbor deadline. Under the Supremacy Clause, the State cannot prosecute or otherwise regulate conduct that was entirely within the ambit of federal authority. Therefore, the State has no power to prosecute any post-December 8th conduct.
Chesebro described his pre-Safe Harbor deadline involvement as “limited” to “his drafting of a legal memo” to overturn the 2020 election.
“Even if Mr. Chesebro agrees that drafting this memo was improper (and not subject to attorney-client privilege), this memo in no way touched or concerned Georgia or its rules, processes, or procedures it had implemented as a result of its congressional delegation via the ECA,” the motion continued. “Therefore, the charges against Mr. Chesebro are wholly invalid as drafted in the indictment and should be struck accordingly.”
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