Democrats are using criminal law to fight their political battles. It’s very dangerous

in their quest to drown Donald TrumpState attorneys general dangerously expanded criminal law into the realm of politics, and threatened the legitimate activism of the First Amendment. District Attorney General Fanny Willis“Use The Georgia Influenced and Corrupt Organizations (“RICO”) Act. Accusing a political campaign of a criminal act makes innocent political activity the subject of prosecutors, all without providing defendants with clear evidence of behavior that violates the law. while Democrats Perhaps emboldened by Willis in her efforts to convict Trump and his cocktail of allies who sought to overturn the results of the 2020 election, their victory may turn into regret when Republican prosecutors use these tools in their political campaigns.

RICO’s pursuits are not limited to organized crime families or gangs, but there must be an actual criminal enterprise and related criminal acts to further the enterprise. This is true even in Georgia, whose RICO law is broader than others, including federal law, because it combines longer list of predicate offenses with broad definitions of “establishment” and “extortion”. Conviction of a Georgia RICO company is a felony punishable by five to 20 years in prison, a greater fine of $25,000 or three times the amount of money gained from criminal activity, or both a prison sentence and a fine.

Immediately, the first alleged public action in the indictment against Trump was a nationally televised “victory” speech the day after the election, which already exceeds the standards of the RICO case. However, at the time of the speech, there was not enough information available about whether any voting fraud in Georgia had tipped the scales, there was no plan for surrogate voters, and Trump seemed to genuinely believe he had won. Trump’s speech was protected under the First Amendment to the Constitution, which protects political speech, even if no one believes it, and even if it contains false information.

Furthermore, while Georgia RICO prohibits the defendants from “acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real estate or personal property of any kind, including moneyNo one is alleging that Trump engaged in his post-election shenanigans because he was trying to gain money, property, or control of a business. Furthermore, unlike in the traditional RICO case, Trump did not create or belong to a criminal enterprise, as in the RICO case. traditional.” It is traditionally known, and he did not intentionally commit criminal acts for the purpose of continuing this project to acquire or control property, funds, or companies. Instead, Trump wanted to declare victory in the 2020 election because, apparently, really thought That he won no matter what some of the advisors told him.

The indictment also notes that the legal advice Trump received constituted crimes. This sets a very dangerous precedent, because legal advice, even if it is strange or bad, should not be criminalized, especially when the cases are new and have not been tested in court. For example, famous lawyers supreme court Cases like Brown v. Board of Education, Miranda, Griswoldand many others argued against the existing precedents and legal thinking of their time, and certainly were not and should not be prosecuted.

Moreover, it is very likely that the misguided strategy of Trump’s lawyers after the election to create alternative voter lists and the legal advice to support them is based on two historical events: the 1876 Electoral College drama between Rutherford B. Hayes (right) and Samuel J. Tilden (D), and the drama of the 1960 Hawaiian presidential election between Richard M. Nixon (R) and John F. Kennedy (D). In 1876, Tilden won the popular vote and 184 electoral votes, but Republicans They challenged election results in Florida, Louisiana, and South Carolina because they alleged that Democrats engaged in election fraud and intimidation of black voters. Hayes eventually won by 185 electoral votes, but Democrats submitted alternate lists to voters from Oregon, South Carolina, Florida, Louisiana, and Vermont, knowing that their alternate lists were unsupported or questionable. No one has been charged with a crime and should not be charged, although Tilden’s nephew, William Tilden Belton, admitted that he tried to bribe local election officials in Oregon, Florida and South Carolina.

Likewise, in 1960, Democrats in Hawaii challenged Nixon’s primary victory, signed replacement electoral certificates, and sent them to Capitol Hill, even though JFK did not claim Hawaii as the winner until much later. Again, no one was criminally charged, and in fact the judge commended the Democrats for creating and signing off on a replacement slate.

In fact, on November 4, 2020, while Pennsylvania was still counting votes, Van Jones won CNN Professor Lawrence Lessig of Harvard Law School published a CNN article Citing these events and supporting alternative voters! Indeed, it is worth noting that after the 2016 election, the Clinton campaign and allied groups like Unite for America enlisted celebrities like Martin Sheen to persuade voters not to cast ballots for Trump; Voters received death threats, harassing phone calls, and hundreds of thousands of hostile emails. The Clinton campaign also attempted to solicit an intelligence briefing on foreign election interference in order to sway voters with false information. Clinton team cooked The bogus “Steel Dossier” and he and other allegations relating to Trump and Russia are known to be false. Anyone who believes that Clinton or her campaign staff – an actual organization or institution – should never have been charged with criminal charges, which they have not, should also think long and hard about whether Trump should face criminal charges.

It may have been calculating for Attorney General Willis to bring criminal charges against the leading Republican presidential nominee, especially since Fulton County is reliably Democratic and has targeted every Democratic presidential candidate since 1976. However, her broad indictment should not be. serves as a cautionary tale against the distortion and expansion of criminal laws beyond their norms. Prosecutors should realize that what Can Fees are not always charged He should be charged.

Jun Yu is Professor of Law at the University of California, Berkeley. He is also a non-resident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. John Shaw is a lawyer and legal commentator.

The opinions expressed in this article are those of the authors.