Kraken, released: Fani Willis indicts ... everyone

AP Photo/Jacquelyn Martin

Sidney Powell promised that the “Kraken on steroids” would get released in Georgia. She turned out to be more correct than she knew. Powell, along with Donald Trump and more than dozen others, got indicted by a grand jury last night on 41 counts, including racketeering, for their attempts to allegedly overturn the Georgia election results in 2020.

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The list of defendants and charges takes up more that three pages of the indictment. Among the other notables joining Trump and Powell in the dock are:

  • Rudy Giuliani (13 counts)
  • John Eastman (9 counts)
  • Mark Meadows (2 counts)
  • Jenna Ellis (2 counts)

The charges, other than the overall racketeering charge all share in common, include:

  • False statements and writings
  • Solicitation of violation of oath by a public officer
  • Impersonating a public officer
  • Forgery
  • Witness tampering
  • Filing false documents
  • Election fraud
  • Invasion of privacy

Needless to say, this goes well beyond comprehensive. This looks not just like the kitchen sink but also the bathroom and laundry sinks as well. It would take days to sit down and peruse these charges in any depth, but at least at first blush, it appears that Fani Willis looked up every possible charge and convinced the grand jury to indict on all of them.

The second count (and others like it) seems pretty significant. That is one of the counts of  “solicitation of violation of oath by a public officer,” and it relates to the effort to create a phony set of electors comprised of state senators. The idea behind this, as in other states, was to claim in Congress that the state had two sets of electors — a situation that would have allowed Congress to choose which set of electors to recognize, had both slates been certified by the state. This was the key to the January 6 plan to have Mike Pence either push for the ersatz slates or throw both sets of electors out and return the matter to the states. That was a dangerous idea, legally and politically, but neither Congress nor Pence took the bait.

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The following counts allege a series of crimes in this vein; count 5 aims solely at Trump. The grand jury alleges that Trump tried to “importune” Georgia’s speaker of the House to call a special session to throw out the electors from the election results and appoint the ersatz slate in its place. Count 6 is similar, but it involves the same effort by Giuliani and Ray Stallings Smith III to get the governmental affairs committee to switch elector slates. The fake electors get indicted in count 8, one of the impersonation charges in the indictment; count 9 indicts Trump, Giuliani, Ellis, and others for causing them to put themselves forward as valid electors in the first place. The fake electoral certificate submitted by the electors get them all indicted for forgery and conspiracy to commit forgery in counts 10 and 11. These same counts get repeated in counts 12-19, for every submission in the effort to replace the certified electors with Trump’s elector slate.

Those counts will almost certainly be the strongest part of Willis’ case, and probably the easiest to prove. After all, these “electors” repeatedly filed paperwork in support of their position, which makes it very easy to charge and document. The state did not certify them as electors, after all, and that alone makes their claims at least legally suspect, and at worst a deliberate fraud.

Count 28 is also notable. The grand jury indicted Trump and Meadows for “the call,” the infamous attempt to pressure Brad Raffensberger into “finding” 12,000 or so votes. That also may be tricky in court; Trump and Meadows will argue that they truly believed that ballots had gone uncounted and just wanted the Secretary of State to find them. The outcome of this count will likely hinge on what Raffensberger had to say about the call in his grand-jury testimony, which might make this an easier reach for Willis. (Count 38 and a couple of others are similar.)

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As expected, the Coffee County hack has shown up in this Fulton County indictment, too. The RICO predicate allows Willis to reach into other jurisdictions, and this was clearly irresistible. Counts 32-37 indict Powell and three others (including fake elector Cathleen Latham) for a variety of offenses related to the unauthorized access of Coffee County voting machines and the theft of data from them. That got caught on surveillance video, but the defense on that — so far — is that they thought they had received authorization for accessing the machines and the data. That’s a pretty thin defense, but who knows? It could work, if the defense can find good witnesses and documentation that would explain their activities.

The rest of the counts attempt to criminalize the claims of fraud that later got debunked, either in public, in testimony to the legislature, or in lawsuits filed as part of the “Kraken” effort, but that will likely be the weakest part of Willis’ case. One particularly laughable allegation is Act 22 in the RICO charge {see below], in which the grand jury indicted Trump for telling followers to watch the legislative hearings on OANN. Say what?

That’s just silly, and it doesn’t do much for the credibility of the indictment. It’s not a crime to promote legislative hearing coverage. It’s not a crime to air conspiracy theories, even under oath, if one truly believes them. It may be stupid, but it’s not illegal. Willis will have to prove that they knowingly gave false testimony, and that will not be an easy thing to prove.

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Well, except that Giuliani has already admitted to doing soD’oh!

So what does all this mean?

Put aside the indictments over the false claims of fraud, which may be the weakest part of this indictment. The other charges are serious, and perhaps even the most serious that Trump et al face so far in the post-2020 litigation environment. The fake-elector scheme is particularly fraught, since it involved committing the claims to the public record. It may be easy to shrug this off as politically motivated, which is certainly true but at this point largely irrelevant. This holds very large legal risks for Trump and the others named in this indictment, and the trial will take place in a county and state where Trump isn’t exactly a popular figure, even among Republicans.

This absolutely looks like a Kraken on steroids, at least at the indictment stage. Willis still has to prove these charges beyond a reasonable doubt to a jury, but given the incompetence of Trump’s post-election team in their stumbles through these processes, that may not be a stretch at this point. And this is just one of the “Kraken” states. If this succeeds, other states and/or counties might take a closer look at fake-elector schemes and other such activities.

Update: I mistook Act 22 as a count in the indictment. It’s an act alleged in Count 1 in furtherance of a RICO conspiracy. It’s just as silly in that context, though. I’ve corrected it above.

Update, 3:40 pm ET: There are a number of comments that offer some variant of “Ed Morrissey must be ignoring [variety of allegations regarding accuracy].” I’d remind readers that the Republican Secretary of State in Georgia conducted a full recount and two official audits of the results, which produced negligible changes to the election count. We covered those extensively at the time, so pardon me if I don’t feel compelled to specifically rebut each claim.

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