He is in a heap of trouble

Dear Readers, After the testimony of Cassidy Hutchinson, the legal peril of Donald J. Trump crystallized. It is substantial. There is not some partisan plot to bring down Trumpism, just the reality of how one man’s blatant disregard for the law may bring him down in the end – no man is above the law.

The January 6th Select Committee has both the curse and blessing of time; it is likely that the Democrats will lose power in November and, with it, the Select Committee has a near-certain December expiration date. It also has the freedom of an almost unlimited budget and resources, limiting factors on most prosecutor offices across the country, including the Department of Justice. Lastly, its scope is broad, having little jurisdictional limit, unlike State officials, and is not necessarily trying to unearth crimes.

Prosecution for crimes is a different matter. Our federal form of government allows for power sharing between the states and our federal government. There is no “Double Jeopardy” protection (except by state statute) for crimes springing from the same occurrence. For example, Paul Manafort was tried, convicted, sentenced, and then pardoned, for a number of fraud and tax evasion crimes. The State of New York has jurisdiction of some of them, but local prosecutors are probably barred from charging him, because of New York’s Double Jeopardy law, i.e., you cannot be prosecuted twice for crimes from the same facts.

Georgia is different. Yes, you cannot be prosecuted in two or more counties for the same crime and facts; but that is not true for a parallel federal one. Ahmaud Arbery’s killers were found guilty of his murder (state court) and violating his Civil Rights (federal charges) in separate trials. They are both State and Federal prisoners, and a Bureau of Prison cell is waiting for them when they are finished with the Department of Corrections.

There are practical reasons for dual prosecution. If there was a procedural and/or legal error committed in one, the second prosecution acts as insurance a conviction will stick. Further, Federal Jurisdiction of a crime usually hangs on the legal thread of some nexus to interstate commerce, which is not always a given. For example, it is presumed, and maybe a given, illegal drug activity has or will impact more than one state – a person can be convicted twice, in this fashion, for the same quantity of illegal drugs.

President Trump’s activities are different; they unambiguously appear to directly touch on Federal and State law. For instance, the phone call to our Secretary of State, Brad Raffensberger, trolling for 11,780 votes, impacts State law and our election process, and Federal law, since it was a Presidential election. In other words, while Fulton County District Attorney, Fani Willis, has asked for a Grand Jury to investigate the phone call for possible state criminal charges, DOJ may be running a parallel investigation; we just don’t know exactly what is happening, as long as DOJ keeps a lid (as it has) on public leaks.

Now, if Ms. Willis convinces the special Grand Jury empanelled to issue charges (and what is called a “special presentment bench warrant”) the drama switches focus to extradition (unless it is waived). Georgia cannot enforce an arrest warrant in Florida; Ron DeSantis, Florida’s Governor, will have to sign off on Mr. Trump being sent to Georgia for prosecution, by signing a “Governor’s Warrant” at the request of our Governor. The question for Ms. Willis is, as Fulton County’s prosecutor, whether or not any crime committed has sufficient local merit to bring charges.

The Federal prosecution of a former President has never happened before. It is one thing for a State to feel that a breach of its laws merits arresting someone; it is another for DOJ to send Federal agents out to do the same. There would be no need for a Governor’s Warrant. They would just swoop in and bring President Trump before a local Federal judge. Merrick Garland does not weigh intra-state issues and local merit, he is deciding if he can obtain a conviction. It is easy to indict someone, as you only need a “probability” a crime occurred – believing you can obtain a conviction implies a reasonable juror will find a “beyond a reasonable doubt” quantum of proof, a high bar.

President Trump is in a heap of trouble. Prosecutorial discretion aside, private citizen lawsuits loom from injured Capitol Police and for civil rights violations from seeking to upset vote certification.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

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