UPDATE: Former President Trump has been indicted a fourth time. Here’s WMNF’s conversation with a law professor

Donald Trump by WMNF
Donald Trump in Tampa. By Seán Kinane/WMNF News (2016).

On Monday, President Trump was indicted for a fourth time. This time in Georgia. In late July WMNF interviewed a law professor about the four indictments. The two that had already happened and the two that have happened in the three weeks since this interview. The audio, video and transcript are below.

The original story is below

We spent the hour getting a law professor’s take on several Florida stories in the news including updates on the criminal cases against former President Donald Trump. We also spoke about a federal lawsuit attempting to get Florida to realize the promise of a constitutional amendment aimed at restoring the voting rights of felons and about how a redistricting case in Alabama might impact Florida’s Congressional map.

Our guest was Ciara Torres-Spelliscy, a professor of law at Stetson University College of Law in Gulfport and a Brennan Center Fellow.

Listen to this show:

Trump has been indicted twice

  • A state indictment in New York with 34 felony counts for a “scheme to bury allegations of extramarital affairs that arose during his first White House campaign,” per AP.
  • A federal case in Florida about keeping classified documents at Mar-a-Lago and obstruction.

Trump could face two more indictments soon

  • A federal indictment related to the January 6th insurrection and attempting to derail the transfer of presidential power after the 2020 election could come any day now.
  • Possible state charges in Georgia related to ‘statutes related to influencing witnesses and computer trespass [that] include Trump’s conversations with Georgia’s secretary of state, Brad Raffensperger, in which he asked Raffensperger to “find” 11,780 votes,’ could come by August, according to The Guardian.

Watch this show:

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https://open.spotify.com/show/311qfxLFcO8F7ZvnjgZogD – WMNF’s Tuesday Café with Seán Kinane.

Rush transcript of this interview:

Felon voting rights in Florida

Seán Kinane

One of the voting rights issues that has come up in the last few days is that in 2018, voters in Florida approved a constitutional amendment that allowed most felons who had served their terms to regain their voting rights. But in 2019, the Florida Legislature stepped in — they say — to clarify what voters had written into the Florida constitution. But what happened in 2019 when it came to felons and the fines that they needed to pay before they voted?

Ciara Torres-Spelliscy

Yes, so amendment four, which was passed in 2018, restored voting rights. But then the Florida Legislature swooped in in 2019 and said that individuals had to pay fees and fines before they could get their voting rights restored. This led one federal judge to call this a pay-to-vote scheme. But ultimately, what Florida did in 2019, was upheld by the federal courts. So now we have a new lawsuit, which asks Florida to produce a database, which makes it clear how many fees and fines are outstanding for any individual citizen. And this is a key reform that we need, because right now, Florida is very Kafka-esque. It won’t tell you what fees and fines you owe. But if you guess wrong and vote, then they will go after you for fraudulent voting.

Seán Kinane

And we saw that when there were about 20 people arrested roughly a year ago in Florida, and a lot of them said that they just thought they were eligible to vote, but they weren’t sure. And so you think a database like this might clarify things.

Ciara Torres-Spelliscy

Indeed, I write about this in my new book, The Democracy Litmus Test, and a lot of those original 20 arrests, the prosecutions have fallen apart, in part because lots of these individuals had voting rights cards from the state of Florida, which said that they had the right to vote, then they voted, and then they were prosecuted for voting. And one of the things that their lawyers were able to say is they didn’t have the mental state of voting fraudulently. They thought it was lawful for them to vote.

Seán Kinane

One of the reasons they were arrested is because Florida has this new office called the Office of Election Crimes and Security. Critics are calling it the elections police. What is this? What does this office do and the $2.6 million that the Florida Legislature has given it over the last two years? What kind of crimes is this office going after?

Ciara Torres-Spelliscy

So they’re looking for individuals who have voted illegally. And that is not the worst thing in the world. We want our elections to be safe and secure, and for those who are eligible to vote, to be able to vote. But the problem that Florida has created is they haven’t made it clear what fees and fines someone with a felony conviction actually owes. And so they are just creating this system, which puts an enormous amount of risk on the would-be voter. And it is incredibly punitive. So if you guess wrong and vote when you’re not allowed to vote, because there’s some outstanding being verified that you don’t even know exists, then you can be prosecuted for that unlawful vote.

Seán Kinane

Critics of all of these things that have happened since 2018 say, “Well, one of the goals of the Florida Legislature is for fewer and fewer people, especially people who might lean Democratic would like to be able to vote that’s and be allowed to and be able to register and to vote.” But there’s also kind of a corollary here that seems to have happened, especially maybe in the last election, the 2022 election, is that there are a lot of people who may be sitting it out, because they’re kind of afraid that they’ve registered, but they’re not sure if they’re gonna get busted if they do vote.

Ciara Torres-Spelliscy

Yeah, I think this is going to have a chilling effect, especially for those individuals whose rights were restored by Amendment Four, they may have a zero balance on their fees and fines, but there is no database that Florida runs, where you can actually establish that you have a zero balance. And that’s why they’re being sued. Florida needs to create a streamlined, one-stop shop, where anyone can figure out who owes what. And when you get to a zero balance, that’s when you can vote.

Seán Kinane

So you’ve made the argument for why the state needs something like this. But now what I’ll ask you: what do you think the chances of that actually happening? Like a judge would say, “This is needed. But I also have the authority to kind of ask the state to do this?”

Ciara Torres-Spelliscy

I think judges are going to be very sympathetic to this. As in, I think they will require Florida to make such a database. One, it’s sort of nuts that Florida can’t keep track of the fees and fines that are owed to it. That just seems fiscally unpruned. But it’s also impacting people’s fundamental rights here. If you can’t prove that you have a zero balance that will deter individuals, even if they do have a zero balance from voting, and that changes who the electorate is.

Florida’s SB 7050 elections law

Seán Kinane

I’ll ask you briefly about a different election law that just came out of this Florida legislature this year. It’s called SB 7050. In early July a federal judge blocked parts of it that were challenged by voter registration groups. The parts that were blocked, would prevent non-US citizens from collecting or handling voter registration applications and make it a felony for voter registration group workers to keep personal information of voters. What are your thoughts about this law and about how it might be upheld in the courts?

Ciara Torres-Spelliscy

So this is getting at sort of another overblown accusation of a problem, that’s not really a problem. So the accusation from some Republicans is that there’s a vote harvesting problem. So vote harvesting. The pejorative term for this could also be known as helping one’s neighbors. So there are lots of different times where you would want to help a neighbor vote, for example, they are in a nursing home or otherwise Ill or homebound. In order to get their ballot back to the state, it may be very difficult for someone to even get down to their driveway and put their ballot into their mailbox for return trip to the state.

And so over the years, there have been voting rights groups who go to nursing homes or other places where people are struggling with exercising the right to vote. And they have helped them to vote and get their ballots in and you know, comply with all the rules sign all of the places you’re supposed to sign things like that.

Now, for certain Republicans, they find this abhorrent, which I find very strange, but they do not like the idea of voters being assisted in voting. And there is a sort of minuscule risk of fraud. So you could have someone who went to say, a nursing home and gathered up all the absentee ballots from all nursing home patients and voted the way they want it to vote, not the way the voter wanted to vote. But these things tend to get caught. So one of the things that election workers will look for is Are there lots of ballots from a similar location, all in the same handwriting, and those get flagged for potential fraud and investigated? So I feel like the fear of vote harvesting is overblown.

And the idea of a noncitizen handling a ballot being like the end of the world. I think that sort of ignores that we have lots of families in the United States and in Florida, who have a noncitizen parent, for example, and an American citizen child, that American citizen child once they reach the age of 18, is allowed to vote. So having the noncitizen parent, you know, handle the ballot on behalf of their teenager or who was a voter does not seem like the end of the world to me. But there seems to be this move in lots of red states. And I would sort of count Florida in that at this point, to criminalize vote harvesting. So they’re criminalizing helping another person vote. And I think that is sort of very wrongheaded.

Seán Kinane

And regardless of how this case, that’s challenging this law ends up, it looks like it’s already having an effect as far as impacting voter registration groups. This is something I saw on the social media network that was formerly called Twitter. I saw this yesterday: the League of Women Voters of Florida said, due to the new law and ongoing legal battles League of Women Voters of Florida has decided to switch to electronic registration to avoid penalties associated with paper applications. Here’s a quote from the league’s Cecile Scoon, who says, “We strive to follow the law, even when it seems unfair.”

So even let’s say this was eventually struck down or whatever happens, regardless of the outcome, it’s already impacting people who groups who go out in and try to register voters.

Ciara Torres-Spelliscy

The other frustrating thing about this is Florida has done this before. So Florida has made it nearly impossible for voter registration groups to register voters in Florida. And it’s inevitably challenged, and Florida has either lost or settled those cases. So they basically stop the law that made it so hard for voter registration groups like the League of Women Voters, which is why if you are a law nerd, if you look up the League of Women Voters of Florida, you will find that they have been plaintiffs in lots of lawsuits against Florida and that they’ve won lots of lawsuits against Florida because Florida has this bad habit of trying to make it more difficult to lawfully register to vote. And one of the ways they do that is they just make it completely impossible for the voting rights groups like the League of Women Voters to help people get registered, which is sort of like another version of trying to make it more difficult to vote.

Because Florida is a state where you have to pre-register in order to vote, you have to plan ahead. You can’t just show up on Election Day and register the same day. And that is different from other states, other states are much more pro-voter. There are same-day registration states where, if the the fancy strikes, you finally get interested in the election, in the last few days that the election is open, you can register to vote in those states and other states, around 10 of them have gone to automatic voter registration. So in those states, the presumption is you are registered to vote.

The presumption in Florida is that you’re not registered to vote, and that you have to take affirmative steps to actually register. So our democracy is a patchwork. Part of that is rooted in federalism, each of the 50 States gets to have their own election laws. But it means that if you came here from California, for example, which has automatic voter registration, and you think that you are automatically registered to vote in Florida, I have bad news for you, you are not in Florida, you have to take affirmative steps to become a voter. And Florida keeps doing this sort of ridiculous game of making it really hard for civil groups, civic groups to help you register to vote. So it takes a little bit of initiative on the part of the voter here.

Lawsuits challenging new Florida laws

Seán Kinane

We’ve talked a couple of times so far about laws that the Florida legislature passes, the Florida Governor signs and that are eventually overturned by the courts. And all that expense is paid for by the taxpayer. Is there any disincentive for the legislature in not to do that? Is there any reason for them to stop doing that? I think it’s fair to say that if we stopped passing laws that are going to get overturned and then stopped having to defend those laws in court, it would just save everybody a whole bunch of time, a whole bunch of confusion and a lot of money. Are there any things in place that might incentivize stop to stop doing that?

Ciara Torres-Spelliscy

Unfortunately, not. So there are such better uses of our taxpayer dollars. We could put it into improving our schools, improving our roads, dealing with climate change, job training programs, there are a lot of different things that this money could go towards. And instead, we have decided, or at least the legislature in Tallahassee has decided and Governor Ron DeSantis seems to agree that passing laws, some of which are ended up being ruled unconstitutional, either by state judges, or by federal judges. They are spending our time and money and resources to, you know, sort of tilted windmills, the fear of vote harvesting, the fear of someone being assisted in registering to vote. These are not things that I think should be at all criminalized. But we have this sort of anti-voter culture in Florida. And so the legislature has decided that this is the way that they are going to use valuable and rare resources.

President Trump’s indictment on state charges in New York

Seán Kinane

We’ll now break down these different indictments against former President Trump and the possible ones to come. So let’s begin with the first one that happened. It was a case in New York and what is the former president facing in New York, and what will be the consequences if he’s actually found guilty?

Ciara Torres-Spelliscy

New York — this is something that came out of the 2016 election. So in 2016, Trump is running for president for the first time, one of his lawyers named Michael Cohen, works with the National Enquirer to what is known as catch and kill bad stories about Trump. So, Cohen, with the help of the National Enquirer, catches and kills negative stories from two women who claimed to have had affairs with Trump. And then some doorman who claims that Trump has some illegitimate child. And both of all three of those stories don’t make it to the light of day before the 2016 election. Now, this required payments from Trump through Michael Cohen, to these two women in the doorman. Some of that is, is facilitated through the National Enquirer, some of that is facilitated through an LLC that Cohen creates.

It all gets a little complicated, but the long and the short of it is the Trump Organization books this as sort of normal legal fees instead of a hush payment scheme. And that makes the Trump organization’s business records illegal. And so Trump is being charged with falsifying these business records. And if he’s convicted, he could spend several years in prison. What’s so strange about all of this is there’s nothing in our constitution that bars Trump from running for president just because he’s convicted of a felony. So there could there is this prospect of the possibility that we could have a person elected to the presidency from jail, and we’ve never had anything like this. We are in completely unchartered waters here.

Seán Kinane

And just to add a little bit more about the charges, one of the hush payments was supposed to go toward Stormy Daniels, who’s a porn star. It’s a 34 felony count, indictment. So there are a lot of serious charges. And one point about this that’s happened recently in the news is that last week a federal judge denied the Trump team’s attempt to move the Manhattan base charges into federal courts. It has been remanded to state courts. So why is it important here that this is a state charge versus a federal charge?

Ciara Torres-Spelliscy

So this all goes to presidential pardon power. Right now, Joe Biden, if he wants to pardon someone for a federal crime, he can. But President Biden cannot pardon someone for a state crime. So it matters whether Trump is charged federally or in a state proceeding, which is what the New York DA is case is it’s considered a state proceeding. It’s sort of a local proceeding, but it’s considered state, not federal. And that matters, because if he is convicted, then no President including himself can pardon Trump for that New York state crime. And it would have been different if his attempt to remove this to federal court had worked, because if he could argue that this was actually a federal crime that he should be charged federally for what happened in New York, then either Trump himself could try the self-pardon, which is another thing we’ve never seen before. But if anyone was going to try it, it would probably be this individual. Or say, Ron DeSantis wins the nomination and then wins the presidency. It’s not out of the question that a Republican president would pardon Trump for all of his federal crimes. But so long as he has a state conviction, that state conviction cannot be pardoned by any president.

President Trump’s indictment on federal charges in Florida

Seán Kinane

Now we’ll talk about the federal case against Trump in Florida. He was indicted for keeping classified documents at Mar a Lago in Palm Beach. And since this one is based in Florida, and it’s fairly recent, it might be the one that’s the most fresh in people’s minds. So what what are some of the 37 counts here that Trump is charged with?

Ciara Torres-Spelliscy

So he is essentially being charged with mishandling classified and military documents. These are documents that belong to the United States, they do not belong to Donald Trump sort of full stop. And he’s been strangely arguing in the press that the Presidential Records Act somehow gives these documents to him. It does not it does the exact opposite. It makes clear that these documents that were created during his presidency are the property of the United States and at the end of his presidency, he was required to give them all back and instead of giving them all back, apparently, he absconded with boxes and boxes of them. And then he stashed them. It appears at his home in Florida at Mar a Lago. Now, the story gets very strange from there, the National Archives who has the responsibility for these documents, I think first asked nicely for them back, asked several times, and Trump and his lawyers gave back a few but not all of them, then he becomes subject to a federal subpoena to give them back and he doesn’t give them all back. He even hides them from one of his lawyers. And apparently, this lawyer was taking copious notes. Maybe the lawyer had a sense that he was being lied to. And so all of this led to Mar a Lago being searched the search turns up the missing documents, at least most of them and so now he is being charged with maintaining the classified and military secrets, that he had no legal right to retain.

Seán Kinane

According to CBS News, the documents include information about US nuclear programs, defense and weapons capabilities of the US and other countries, vulnerabilities of the US and its allies to attack and how the US would retaliate in response to an attack. It seems like why in the world would an ex-president think that that’s information that they should just keep lying around? Not under lock and key? Some people have gone out on a limb and said that he wanted to trade some of this information for favors. I don’t know if any of that’s in the indictment. But it sounds like it’s very serious charges. There’s always talk about this being a political ploy and it’s Democrats trying to nail a Republican, but it seems like we’re really talking about serious federal crimes.

Ciara Torres-Spelliscy

We are, and the indictment doesn’t accuse him of selling any of these documents, at least, not yet. It’s also it’s possible that there could be a superseding indictment if there’s evidence of that additional crime. One of the things that the indictment does accuse Trump of doing is sharing documents that are either classified or contain military secrets with people who had no authorization to see them. So there was an individual who was writing a book about Mark Meadows. That individual is shown some documents. CNN has now released a tape of that meeting, which is pretty damning, where Trump appears to be showing these sensitive documents to individuals in a room, none of whom have the authority to see such a document. And then there’s a further accusation that one of the heads of his pack also was shown a map that the map, see or did not have authority to see the map.

So there are serious problems here with having an ex-president retain the sensitive documents, and then not protect them in the way that we would hope a classified document or a document about US military secrets would be kept.

Seán Kinane

The most recent news on this indictment has to do with the timing of the trial. The Trump team was hoping to get the trial pushed back till after the 2024 general election in November of 2024. The prosecutors wanted to try it earlier. And there was kind of a maybe a compromise in time from that from the judge in this court, Aileen Cannon whose name we’ll hear, I’m sure, over the next few months a lot. She set the trial date for May 20, 2024. This is after the Florida primary election but before the general election. Maybe you can tell me the chances of this date being moved. But it looks very, very probable that this second indictment will be tried before the general election of 2024.

Ciara Torres-Spelliscy

Yeah, so the Trump team had a very aggressive ask to Judge Cannon — they essentially asked for an indefinite postponement of his criminal trial around the classified documents. And, essentially, between that and statements that Trump has made in public, he seemed to be arguing that he wanted the trial to go after the 2024 election. And this goes back to our previous discussion about the pardon power. So I think the logic of this would be — though, it’s still pretty bizarre and out there — is that if he won the presidency in 2024, then because of a long-standing memo at DOJ, it says that a sitting president cannot be indicted. And so if he made it all the way to January 20, of 2025, and he was assuming the presidency, then all of the federal criminal indictments against him would have to be paused for four years during his presidency and/or if he might try to pardon himself for all of these alleged crimes.

Now, we’ve never had any President try to self-pardon. But I think that would be a really difficult thing for the courts to deal with. So, usually, the courts are very hesitant to deal with presidential powers that are sort of clearly laid out in the US Constitution. And that is where presidents get their pardoning power. It is one of the things that is enumerated in the US Constitution. Now, I think this would be a corrupt use of the pardoning power. But the courts are really hesitant to opine on such things. And so it is entirely possible that if Trump tried to self-pardon that a court wouldn’t stop him.

Possible federal indictment of Donald Trump for trying to overturn the results of the 2020 election

Seán Kinane

We’ll talk about indictments [of Trump] that might happen based on the information we have. The first one is about a federal indictment that’s possible related to the January 6 insurrection and Trump’s attempt to derail the transfer of presidential power after the 2020 election.

We don’t know that there’s one coming. But Trump has said he’s gotten a letter from the special counsel who said that he’s a target. And that’s a strong signal that it’s that Jack Smith is moving toward a grand jury indictment of the former president in order to indict the grand jury would have to find probable cause that Trump broke the law. So what what possible breaches of the law might Trump have made in this case?

Ciara Torres-Spelliscy

There are so many potential crimes here. This, I think, is the big enchilada. With Jack Smith looking at Trump’s role leading up to January 6. Then on January 6, itself.

So the reason why I say there are so many potential crimes is there were sort of like crime after crime after crime between January 6 and the previous election in November. So one of the things that they are likely looking at is this effort to pressure states, governors, elections officials, to either reject votes for Joe Biden or manufacture votes for Donald Trump.

The clearest example of this is in Georgia where we’ve all heard the tape where Trump asks for a specific number of votes to be manufactured on his behalf. And the precise number that he gives is one vote more than Joe Biden got in the state of Georgia. Now, fortunately, I think for all of us, the Georgia officials, number one didn’t manufacture votes for him. And then number two, they released that tape publicly so that the entire world could hear it. So that is going to be probably a crime in and of itself.

Now that may be prosecuted locally by finding [Fulton County, Georgia, district attorney, Fani] Willis is also looking at Trump’s crimes in Georgia. But it could also be folded into the Jack Smith investigation as well.

Then there are the fake electors. So in many of the swing states, where if Trump had sort of run the table on all those swing states that would have given him enough Electoral College votes to actually assume the presidency. Out of those states, individuals who would have been his electors had he won those states strangely went along with this fake electoral scheme. So in several of these states, these electors sort of pretended that their team had won that state, which is completely fraudulent. And they put in sort of fake certificates that sort of asserted that they were the true electors.

And that was used as an excuse by some of the lawyers who were around Trump during This period, like John Eastman, that the electoral count on January 6, either should be stopped or should be paused or sent back to the states for reconsideration. And all of those individuals who participated in that fake elector scheme, I think are facing some legal liability. At the very least, they are likely to have violated 18 USC 1001, which makes it a crime to lie in an unofficial filing with the government. So at the bare minimum, there’s the sort of lying to the government problem. But it’s also a criminal conspiracy to overthrow the 2020 election. And I think that’s where you got Jack Smith being interested in the fake electors.

Then there’s what’s what happened on January 6, which a lot of us watched in real-time. You have Trump talking to a riled-up crowd, a crowd that we now know he knew, was armed, not the entire crowd, but individuals in the crowd were armed. And then he encourages them to go to the US Capitol where the constitutionally required electoral count is taking place. And the crowd listens to him. They do as instructed. They attack the Capitol, they attack police officers and law enforcement at the Capitol. they injure several individuals in doing so they break into the Senate chamber, they break into this the Speaker of the Hous’s office, they create mayhem. And in so doing, they delay the Electoral Count Act for several hours.

And all of that exhortation to go to the Capitol may be something that Jack Smith charges as incitement to an insurrection. Now, we don’t know because number one, he hasn’t charged anything yet, in this part of the investigation, so we don’t know what he’s going to charge. And what I am hopeful of is that he will do a sort of similar speaking indictment, as he did in Mar a Lago.

In Mar a Lago he really laid out like, here are the documents, here’s Trump moving them, here’s Trump hiding them from his lawyer. It was a really rich narrative. And so I hope that he does a similar thing with whatever he’s about to charge around, either the pressuring state elected officials to change vote counts, the fake electors or the violence on January 6, that it’s really understandable to the American public, why these are crimes, why they’re serious, why they are deserving of prosecution.

Seán Kinane

I read on CNN that in contrast to Trump’s conspiracy theories that when he was president, he met with senior officials in February 2020, he was touting the security of elections. Do you think that that detail might matter where in 2020, Trump was saying how secure the elections were. And then after the election, he had all these conspiracy theories that he was peddling?

Ciara Torres-Spelliscy

It all depends on what crimes Trump is charged with. But one of the factors that the Special Counsel must be anticipating is one of the defenses Trump or his lawyer is likely to raise and one of the things that he might raise is ‘I truly believe that there was fraud in the election.’ Now, this matters for certain crimes and doesn’t matter so much for others.

But if you are charging, for example, so one of the things that came out in the January 6 Select Committee, their reporting, was that the Trump campaign after the 2020 election, raised money for a election Defense Fund. And, you know, basically to pay the lawyers who would litigate cases about the 2020 election. And it turns out that this fund does not exist. And so another crime that he might be charged with is wire fraud, for raising money for a purpose that did not exist, which is basically defrauding people out of their hard-earned dollars for a fantasy. Now, in such a crime, it might really matter whether you could prove that Trump knew his big lie about the 2020 election, that it was stolen, whether he knew that was true or false. If he knows that it’s a lie, and he’s fundraising off of that lie, then that would, I think, encourage the special prosecutor to go after that mail fraud charge around the campaign finance, crimes. But if he doesn’t think that he can prove that to a jury, he might not charge that crime, even if the crime is otherwise sort of perfectly self-evident, because he’s raising money for something that doesn’t exist.

On the other hand, when if the crime that he charges is interfering with a meeting of Congress, which is what happened on January 6, they were meeting for a constitutionally required counting of the Electoral College votes, that does not require him to know whether the fraud claim that he has about the 2020 election is true or false. You’re not allowed to interrupt a session of Congress, whether it’s for a sort of cockamamie reason, or, you know, a sincerely felt reason you’re not allowed to interrupt a proceeding of Congress. And if he’s charged with that crime, it doesn’t matter whether he believes the big lie or not.

Possible state indictment of Donald Trump in Georgia for trying to overturn the results of the 2020 election

Seán Kinane

One of the things you talked about earlier was Trump’s contacts with elections officials in Georgia. The Guardian is writing that there will be charges related to statutes related to influencing witnesses and computer trespass in the state of Georgia. Including Trump’s conversations with Georgia’s secretary of state that you mentioned earlier, in which Trump asked [Georgia’s secretary of state] Brad Raffensperger to find 11,780 votes.

So tell us about double jeopardy here. What happens if around the same time he’s indicted in Georgia but also indicted on these federal charges that you were talking about a moment ago? It wouldn’t be a problem for the prosecutors if there’s Georgia information is mentioned in both cases?

Ciara Torres-Spelliscy

So as a constitutional law professor, that question makes me so happy. The reason why it makes me happy is no one ever asks about double jeopardy, but it’s a really good question.

So under our system of federalism, we have a federal government. And then we have the governments of each of the 50 states. And the federal government gets to have laws that cover federal crimes, each of the 50 States gets to have their own state crimes.

And double jeopardy is when you’re charged for the same crime twice, which, if you’re the federal government, you can’t charge someone have them be acquitted, and then charge them for the exact same crime like two days later. That’s double jeopardy.

However, because of our system of federalism, you can be charged by both the federal and state governments for essentially the same action. So for example, if you vote twice in an election, that is both a federal crime and a state crime, and the federal government can go after you for voting twice, and the state government can go after you for voting twice. And that isn’t considered double jeopardy because of federalism.

The federal government is its own sovereign, and say it’s the state of Florida, the state of Florida is a separate sovereign. This is sometimes known as our system of dual sovereignty. And so if you were sort of criminal enough to vote twice in a particular election, you were risking double prosecution at the federal level, if it was in a federal election, and then at the state level, If it’s in a state election, so if we bring this back to Georgia, it’s possible that the same actions in Georgia could violate federal law because you’re interfering with a federal election. But it could also violate Georgia statutes because you are interfering with the Secretary of State of Georgia and his responsibilities. So you can be charged both state and federally from essentially doing one action if that one action violates both state and federal law.

Seán Kinane

And going back to the state charges, potentially in Georgia, according to The Guardian, the people that they spoke with that it the indictment of Trump and for state charges in Georgia will be what they call a sprawling racketeering indictment “related to influencing witnesses and computer trespass.” And in order to do so the prosecutors will need to show the existence of enterprise so maybe you can help define some words there. What is enterprise? And what is racketeering?

Ciara Torres-Spelliscy

So racketeering comes from the prosecution of the mob, otherwise known as the mafia. And the idea with racketeering is that you have a criminal enterprise. So think of the mafia as the criminal enterprise. And the mafia may be up to several crimes at once. And so in order to make sure that you’re able to prosecute, like, maybe all seven crimes that a particular mafia family has done, you charge them under RICO.

And I think that this is a similar approach, if the reporting in The Guardian is correct, that the prosecutors in Georgia may be looking at because if you think about the Trump campaign, or Trump himself, and their actions in Georgia, it wasn’t just one thing. At least in the press, it looks like there was an attempt to get into certain Georgia voting machines, there was the attempt to pressure the Secretary of State to manufacture votes. There’s the fake electors scheme in Georgia as well.

And so sort of similar to a prosecutor who’s trying to get all of the crimes that a mob boss or a mafia family is has done, you use RICO and RICO is at the federal level. It’s a federal racketeering crime. But lots of states have what are sometimes known as “little RICOs” and Georgia is one of the states that has a little RICO.

And it may be this statute is what Fani Willis will use to go after Trump. Now, what I think is going to be really interesting is that she only go after Trump because he didn’t do this alone. And part of if you’re going to charge someone with RICO, it essentially has to be a conspiracy. So you’re going to need other participants in the scheme.

And so one thing to keep an eye on is Senator Lindsey Graham. So he also apparently called Georgia officials during this time and, and pressured them to either change the outcome of the Georgia election in 2020. So he may be facing some criminal liability, depending on how ambitious That prosecutor is. And then there are individuals like Cleata Mitchell.

Cleata Mitchell was a lawyer on the Trump team. And she was apparently on that infamous call where Trump asks for the extra votes. She already had to leave her law firm, her law firm was quite disturbed at her behavior in that call. And I think one of the open questions here is, is she going to face any criminal liability from Fani Willis in this Georgia case, this RICO case? Or will the focus solely be on Trump and maybe people we don’t know as well? And we shall see.

Redistricting controversies in Alabama and Florida

Seán Kinane

In the remaining four or five minutes that we have I want to talk about redistricting. The [US] Supreme Court recently ruled that Alabama needed to redraw its congressional map because it only had one minority-majority district. And that was the court found that that was in violation of Federal Voting Rights Act. So how might that ruling impact Florida’s redistricting that just happened last year?

Ciara Torres-Spelliscy

Yes. So, Florida, I think, was counting on Alabama to win that case. And they didn’t. It was, I think, a pleasant surprise for voting rights advocates. But the Supreme Court both upheld the Voting Rights Act again, and said that Alabama had violated it by having only one majority-minority district instead of two.

So, in Florida, there were a lot of what I would call shenanigans around the map that was created after the 2020 census. So there are, I think, strong arguments that it violated the Florida constitution under the fair maps provision of the Florida constitution.

And then I think they’re also really strong arguments that the Florida maps violate the Voting Rights Act to in the same way that the Alabama map was just found to violate the Voting Rights Act.

So I think that loss by Alabama, the Supreme Court could have huge reverberations for maps in Florida, because it, it keeps a door open for litigators to make an argument that what Florida did with that post-2020 map was not legally appropriate.

Seán Kinane

And let’s remind people what happened last year in Florida, the Florida Legislature which is dominated by Republicans drew maps. And yet compared to now they had this North Florida district that looks like if voters would get to choose their representatives, and that might be a Black representative who was voted in. But then when the governor got that map, he vetoed it and sent his own map back to the Florida Legislature. And they kind of rubber-stamped it after he vetoed their first map. So is that the order that happened? Do you think that that will play into any kind of legal challenges that happen with the map?

Ciara Torres-Spelliscy

It’s always hard to say what a particular judge will fixate on. But it’s not the greatest set of facts if you are arguing that a map was created in the ordinary course. And I think the map that was created after the 2020 census in Florida has real legal problems. Now, the good thing is after this loss at the Supreme Court, by Alabama, civil rights lawyers, voting rights lawyers can still go into court and litigate these matters. And hopefully, at the end of that litigation, you got Florida to draw maps that are fairer to all voters.

Seán Kinane

And that was supposed to be what happened in Alabama, but in Alabama, they came out with essentially pretty close to the same map. And the Supreme Court might end up eventually having to have a special master draw new lines for Alabama. Can you speculate about whether that might happen and what might happen in Florida is that if we get to the same point?

Ciara Torres-Spelliscy

Yeah, it’s entirely possible. I don’t think that Alabama is going to have a good path legally, because they were just told by the Supreme Court to stop misbehaving and they’re still misbehaving.

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