A former top federal prosecutor said over the weekend that Fulton County District Attorney Fani Willis’ racketeering case against former President Donald Trump is rife with “holes” that don’t add up.
McCarthy, who once served as the Chief Assistant U.S. Attorney in the Southern District of New York, wrote in an opinion piece written for The Messenger that Trump’s actions to challenge or question the outcome of an election is not a crime and that for there to be an actual criminal operation under RICO laws, it must be a never-ending threat.
Conservative Brief noted:
Last week, Willis brought a comprehensive 41-count indictment against Trump and 18 co-conspirators, alleging that the defendants sought to overturn the outcome of the 2020 presidential election through actions that allegedly violated Georgia’s Racketeering Influenced and Corrupt Organizations (RICO) Act. Furthermore, the indictment accuses them of enticing an official to breach their sworn oath of office.
Though the state’s RICO law allows prosecutors to link various crimes allegedly committed by many defendants, McCarthy wrote in his piece there is “a giant hole” because of “the lack of a clear crime to which Trump and his co-defendants can plausibly be said to have agreed.”
Racketeering conspiracy charges are commonly associated with criminal groups resembling those depicted in shows like “The Sopranos,” engaging in activities akin to organized crime. However, since conspiracy charges necessitate an agreement between two or more individuals to breach a criminal statute, McCarthy wrote that if such an agreement for criminal action doesn’t exist, a conspiracy charge cannot be sustained.
Willis alleged in her indictment that Trump and co-conspirators attempted to keep Trump in power following the 2020 election by explicitly attempting to “change the outcome of the election in favor of Trump.” McCarthy argued, however, that trying to change results without sharing an “overarching objective” technically is not criminal.
McCarthy also said that Willis is attempting to get around proving her objective criminal complaint by using tautology in the charges, noting specifically, on page 14 of the indictment, that Trump and his allies allegedly engaged in a “conspiracy to unlawfully change the outcome of the election in favor of Trump.”
“That is, the lawful objective of changing the election outcome somehow becomes unlawful because she invokes the apparently talismanic word ‘unlawful,’” McCarthy wrote. “But there is no crime of unlawfully trying to change an election outcome — not in Georgia law nor any other American law.”
“Let’s put RICO to the side for a moment and focus on conspiracy. Very simply, a conspiracy is an agreement to violate a criminal statute. It takes two to tango, so a conspiracy must minimally involve a pair of people. Beyond that, though, it can involve three people, 19 people, 100 people — any number,” he said. “Regardless of how many people are said to be implicated, however, there is always one requirement: There must be a meeting of the minds about the crime that is the objective of the conspiracy.”
He added: “If prosecutors allege a large-scale conspiracy, various conspirators may play different roles. In a conspiracy to sell cocaine, for example, some people may handle importation; others handle sales or security, and still others, accounting and management of the cash proceeds. But what unites these role-players in a single conspiracy is the criminal objective — in our example, to sell cocaine. If there is no agreement about a crime, there is no conspiracy.”
The former federal prosecutor concluded that “an agreement to do something legal — to reverse the result of an election — is not a conspiracy. And if the presumption of innocence means anything, we must presume people are innocent if the prosecutor fails to allege that they agreed to do something that was actually a crime.”