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Trump jumps on the ‘Kraken’ bandwagon one more time in bid to torpedo entire Georgia RICO prosecution

Donald Trump, Sidney Powell

Donald Trump, Sidney Powell (Fulton County Sheriff’s Office)

Former President Donald Trump on Monday filed court papers adopting an argument made by “Kraken” lawyer Sidney Powell in a bid to dismiss the overarching racketeering (RICO) count he faces in Georgia as violative of “fundamental constitutional principles.”

The brief Monday filing from recently hired Trump defense lawyer Steven Sadow referenced “Part III” of general demurrer that Powell filed last Friday, Sept. 15.

“President Trump hereby adopts the general demurrer timely filed by co-defendant Powell as to count one. Specifically, President Trump adopts Powell’s particularized argument in Part III that count one must be dismissed for violation of fundamental constitutional principles of due process and fair warning,” the motion said. “WHEREFORE, President Trump respectfully ADOPTS the general demurrer timely filed by co-defendant Powell.”

The Powell demurrer and motion to dismiss the RICO charge (count 1), asserted that the Georgia statute is unconstitutionally vague in its present application by Fulton County DA Fani Willis (D).

“If the Georgia RICO statute reaches the conduct alleged here, then it is unconstitutionally vague. Already, its application has necessarily been decided on a case-by-case basis. It has enabled the District Attorney’s office to make life-altering choices of those to indict — when thousands of people fall within the prosecutors’ definition of RICO here,” the demurrer said. “The State has even indicted First Amendment protected speech and conduct.”

Powell argued that the “only way the Georgia RICO statute can survive constitutional scrutiny is if the Court reads into it an element of criminal financial gain for the individual and enterprise, and the economic or physical threat or injury.”

Without those elements, the demurrer continued, the statute “raises ‘grave and doubtful constitutional questions’ of both overbreadth and vagueness” and “allows punishment of speech and political conduct long and fully protected under the First Amendment.”

More Law&Crime coverage: Georgia RICO judge refuses to let ‘Kraken’ lawyer Sidney Powell face ‘mega-trial’ alone despite her claims of ‘devastating’ consequences

The Trump move comes a matter of days after Powell successfully severed her case from co-defendants not named Ken Chesebro, an attorney who drafted a legal memo asserting that the election outcome could be overturned by then-Vice President Mike Pence on Jan. 6.

Now the former president is once again embracing a legal argument put forth by Sidney Powell, whose tantalizing “Kraken” claims after the 2020 election briefly made her a member of Trump’s “elite strike force” legal team and just as briefly vaunted Powell into the conversation of being appointed as special counsel to investigate the very claims of election-stealing fraud she never proved in court.

Trump last week also adopted a motion to quash filed by Rudy Giuliani, asserting that the RICO indictment was “fatally defective as drafted, and thus incapable of supporting a conviction.” The filing also raised concerns about double jeopardy issues, considering that special counsel Jack Smith is currently prosecuting Trump federally in Washington, D.C., for “perpetrat[ing] three criminal conspiracies” and using “unlawful means of discounting legitimate votes and subverting election results” on Jan. 6. As part of his investigation, Smith is reportedly following the money — and that apparently includes fundraising efforts by alleged co-conspirator Powell and her non-profit, Defending the Republic.

Trump similarly embraced Chesebro’s 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.”

Fulton County Superior Court Judge Scott McAfee, when disposing of a separate complaint from RICO co-defendants late last week, including Powell, noted that the “substantive and unprecedented legal arguments generated by this case will require many hearings.”

Such hearings may include clashes between the prosecution and defense over the DA’s use of the Georgia RICO statute in this case.

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Matt Naham is the Senior A.M. Editor of Law&Crime.