Background Reading:

• LISTEN: “Fifteen Minutes of Feminism—The Trump Indictments: Trump Goes to Georgia”
• “Lawyer in courtroom details Meadows’ ‘really tough time’ on stand,” CNN
• “Indictments Seek to Hold Trump Accountable for Threatening U.S. Democracy and National Security,” Ally Dickson, Ms. Magazine, Jul. 14, 2023.
• “Indictments and Incitements: Threats of Violence Surround Trump Arrest,” Jackson Katz, Ms. Magazine, Mar. 22, 2023.

Transcript:

00:00:00.0 Michele Goodwin:

Welcome to 15 Minutes of Feminism, part of our On the Issues with Michele Goodwin at Ms. Magazine platform. As you know, we report, rebel, and we tell it just like it is—and on 15 Minutes of Feminism, we count the minutes in our own feminist terms. Now in this series, we are returning to the Trump Indictments—and joining us in this episode is Professor Anthony Michael Kreis, who’s had a front row seat to the ongoing affairs in the state of Georgia where the former president, along with co-conspirators, has been indicted. Sit back and take a listen.

It’s a pleasure being back with you again. Thank you so much for joining us. Our Ms. Audiences really appreciate it, the conversation that we’ve had about the Trump indictments, and there’s a lot of controversy, it seems, around the indictments in Georgia. They don’t include just the former president Donald Trump. They also include co-conspirators. As well, there are non-indicted co-conspirators. So, to just catch people up, what does that mean that there are non-indicted co-conspirators, and about 30 of them, and then what does it mean that there are co-conspirators that are being charged and indicted under RICO? 

00:00:48.2 Professor Anthony Michael Kreis:

So, first of all, it’s really great to be back, but I think it’s important to understand that, particularly with the non-indicted co-conspirators, there are a lot of moving parts. So, some people may not have been indicted simply because their level of criminality is just not worth it to pursue, and so, there’s a question of prosecutorial discretion here, where the DA has maybe decided that the resources are not the best funneled or channeled towards those people they’re prosecuting.

The other issue is that many of the fake electors and the untold number of other people, who would otherwise have been potentially indicted, received immunity deals or had cooperation agreements with the district attorney’s office. So, for example, there were a couple of lawyers who were in on the famous phone call with Donald Trump who were called to testify in a hearing by the district attorney’s office, and they’re clearly cooperating with the DA.

And so, those are the kinds of people who make that, you know, in that 33 unindicted co-conspirator group, and then in terms of the co-conspirators, I think there are two diverging tactics here between Fani Willis here in Fulton County and the DC case brought by Special Counsel Jack Smith, where Jack Smith is really looking for an expeditious vehicle for justice in order to bring Donald Trump to account for what he did, allegedly, before January 6 and in his attempts to overturn the election in 2020, but without the kind of cumbersome dynamics of having multiple codefendants.

And so, here in Georgia, we have a RICO claim with these 19 different defendants, and the basic thrust is, is that while all of those defendants did slightly different things and engaged in slightly different discrete acts of criminal activity, they all were engaged in one unlawful purpose, which was to overturn the 2020 election, and they did so without kind of a universally express, overt agreement so that nobody…none of these folks really got together, all 19 of them, and decided at one point in time that they knew exactly what they were going to do and they were going to plan this criminal act and they—

“[T]he basic thrust is, is that while all of those defendants did slightly different things and engaged in slightly different discrete acts of criminal activity, they all were engaged in one unlawful purpose, which was to overturn the 2020 election.”

Anthony Michael Kreis

00:03:17.1 Michele Goodwin:

And to be clear, the law doesn’t require that, right? So, for anybody who is thinking, well, they didn’t get together in a hotel room in Atlanta and all come together at one point. Therefore, the prosecutor is exceeding her reach or the prosecutors are exceeding their reach. That’s not what this is about, as you’re explaining.

00:03:42.6 Professor Anthony Michael Kreis:

Right. It’s not a traditional conspiracy where, again, you know, two people or three people get together, have dinner and drinks, and say, hey, let’s engage in this criminal act, and then one person does something in furtherance of that conspiracy, you know, to actually advance it, and then they’re on the hook for a conspiracy-based crime.

You know, here, there are just all sorts of moving parts, and these folks are essentially part of one machine, one wheel. They are all cogs in that machine. They just don’t necessarily know how they relate to one another, but they all know that they’re working together in a very abstract way, and so, that’s what RICO, essentially, here is. Georgia RICO is a lot more permissive in the kinds of acts that can be brought together and yoked together in comparison to the federal law.

And you know, I think there are plenty of conversations that criminal experts will have about whether that’s particularly dangerous or not or whether it’s a good law or whether it’s ripe for abuse. I mean, I certainly think, kind of as an observer here, it is, but it’s certainly within the parameters of what Georgia RICO envisions in terms of what Fani Willis has brought with these indictments.

00:04:52.2 Michele Goodwin:

So, if you could break it down for us in terms of what’s been the drama behind the Georgia indictments thus far? You were already on, and you gave us kind of a prequel, which was very prescient, and now, what we know is that Mark Meadows has tried do get his trial moved to federal court. We know that the former president did appear. Many people were quite surprised by that. There are the indicted who want their trial separate from others, and there are those that want speedy trials. What are some of the highlights?

00:05:32.3 Professor Anthony Michael Kreis:

Oh, there’s been so much drama, it’s not even funny. You know, yeah…

00:05:38.1 Michele Goodwin:

No, you’re totally right. It is totally not funny. I mean, who would ever imagine, right now, that a former president, who has been indicted on the federal level, in states, has been found recently civilly liable for sexual assaults, with a judge saying that, actually, that jury recognized rape. It’s only that a New York law did not define rape in the way in which we understand it today, but that rape was…rape, I mean, this the law itself, as antiquated as it is, should perhaps reflect what is a common understanding today in terms of what rape is, and so, you really can’t make this up, even that this is a candidate for future office.

00:06:30.6 Professor Anthony Michael Kreis:

Yeah, and of course, codefendants, too, right? Rudy Giuliani is facing a defamation trial from the Fulton County election workers Ruby Freeman and Shaye Moss, which he has basically now lost by default. So, there’s a lot of moving parts all over for Donald Trump and his allies who have been indicted here. I think, you know, to just kind of hit on maybe three big highlights, which I think you’ve really identified that the big ones, since we last talked, is Donald Trump, and all of these codefendants came to Fulton County.

They were booked. Mug shots were taken. I wouldn’t say that they were treated anywhere near the average, you know, person in Fulton County, in the Fulton County Jail, going through that process, you know, would be treated, but they certainly were not given special dispensation, in some respects. They all had to come through the Fulton County Jail and go through that process. So, that certainly was a moment to kind of witness.

The second thing, I think, is, you know, this question of timing. Fani Willis, the night of the indictments, said that she wanted to try all these cases within six months. Most of us thought that was pretty aggressive and ambitious and unlikely to happen, but we have two defendants in Kenneth Chesebro and Sidney Powell, who’ve asked for their statutory rights, under Georgia law, to go to trial beginning in October and November of this year, and so, we’re going to have two trials this year, and there’s the bigger question, of, well, what happens with the rest of the codefendants, the other 17? When do those trials happen? Do different defendants get severed there? Will there be immunity deals or other kinds of cooperation agreements that’ll change that timeline or make it more likely to happen sooner than not? Big, big question, and then the other question is, you know, I think you’re right to call out Mark Meadows, and you know, there’s others who have asked for federal removal.

The idea being that their conduct, and have been prosecuted here in Fulton County for that conduct related to their federal duties. You know, already, Mark Meadows has lost in the district court with Judge Steve Jones, ruling that he was not engaged in federally-protected activities when he was working to overturn the election.

And we can get into that in more detail later if you want, but that’s the big kind of question now, is who removed to federal court? Does anybody get removed to federal court? Does Donald Trump, who has 30 days after the arraignment to file for removal, so that’ll be October 6, does his attorney decide to go for removal, and what kind of proceedings does that look like? Mark Meadows testified in federal court. That was drama that—

00:09:21.4 Michele Goodwin:

That was drama, in and of itself, because it’s so unheard of. What was he possibly expecting?

00:09:31.2 Professor Anthony Michael Kreis:

Who knows? I mean, so, I think Mark Meadows is a…Mark Meadows, for all his faults, he’s a great politician. He’s got a great politician’s demeanor. He’s affable. He’s likeable. You want to believe him, in some sense. If you didn’t really know anything else about him, you’d think, oh, this is just a nice guy from the Carolinas. It’s not…you know, but when he gets up there and is subjected to cross-examination, you know, the politician smiles and the superficial platitudes kind of fall apart.

And so, I don’t know what he expected. I don’t know if he expected to be crossed…you know, be subjected to cross-examination with the intensity that he was, but it certainly was a high moment of drama to sit in federal court and watch Mark Meadows testify in an attempt to justify his actions, particularly with respect to bringing together Donald Trump with the secretary of state where he made that famous request for 11 thousand votes and change.

00:10:35.2 Michele Goodwin:

You know, you were right there. So, you had a front-row seat, so to speak, to much of this drama, and just as you said, you would think that he could’ve been more aware that the prosecutors would, in fact, pepper him with the types of questions and present the type of evidence that they did, and yet, one wonders if he was surprised by that, and if he was surprised by that, why?

00:11:09.0 Professor Anthony Michael Kreis:

Yeah. You know, I think that there’s an interesting strategy here, too, because there seems to be, or seems to have been, an eagerness in setting these hearings in motion. So, Mark Meadows, like Donald Trump, would’ve had until October 6 to file for removal. If the issue was, or the game plan was, just to delay, it would’ve been smarter for Mark Meadows to start in October, but it seems as if Meadows really wants this to be, you know, done expeditiously and wants this taken care of. I think bills are expensive, you know, and so, there’s a financial issue there.

There’s certainly…there’s a stressful dynamic about being prosecuted. So, his interests are divergent from Donald Trump’s in this particular moment, as are most of the codefendants, and so, you know, I think maybe there was a hope that, you know, this would…his testimony and the appearance of candor would somehow get him removed into federal court more quickly and the process would be expedited and the jury pool would be more favorable and he could just leverage something out of this really tough dynamic that he’s been put in, and that just didn’t pan out.

00:12:31.7 Michele Goodwin:

No, and it does raise questions about, you know, as you mentioned, he’s a politician’s politician. You know, what level of entitlement was there that, somehow, he may have thought that testifying would render a different kind of interaction with the prosecutors, because, as you know, as students are… Law students learn their first year of law school that it is absolutely cautioned against defendants testifying on their own behalf, unless there is just such a clear, clear case that the prosecutors have gotten this all wrong. So, that was surprising, and more to learn from that, but let’s turn to the argument made by Meadows, which is that he was acting under his official capacities in working with and for the president.

00:13:28.5 Professor Anthony Michael Kreis:

Yeah, so, for removal be successful, the motion has to show that, one, the person in question, the defendant, was a federal officer. Now, that’s really easy. Mark Meadows was commissioned to be chief-of-staff to the president of the United States. That’s not a question. The second question, though, is, was the defendant acting under the color of law, and the third question is, is there a viable federal defense where the defendant shows that they were doing nothing more than what was absolutely necessary to carry out their federal duties?

And you know, Mark Meadows argued that he was doing the kinds of things that a chief-of-staff to the president of the United States would do. Making contacts, checking in on meetings, you know, scheduling meetings, making sure the president was on time, you know, bringing different people together, being a gatekeeper of information for the president of the United States, and engaging in that kind of day-to-day activity landed him in hot water here in Fulton County, and that he should be removed, as a consequence.

You know, Judge Jones basically looked at that and said, no, you’re being charged not for the things you’ve done. You’re not being charged for bringing people together or getting contact information or setting up meetings. You’re being charged for entering a conspiracy to overturn the election, which is not within your prerogative as a federal official, and in addition, he noted that Mark Meadows was engaged in partisan electioneering, which is not permitted under the Hatch Act.

So, he was engaged in things that were…and he’s been charged for things that are not within his purview…or not within his purview, and he’s being charged with things that are affirmatively prohibited under federal law, and then, on top of that, you know, Judge Jones said that the federal government has a lot of interest in how elections are run before ballots are cast and counted, but afterwards, that’s a prerogative of the states, and so that there’s really no federal interest that Mark Meadows had in being involved in the ins and outs of the election here in late November and December and January 2020 into 2021.

So, you know, that’s really, basically, how the judge dismissed that motion. I will note, though, there is some debate about exactly how this should shake out, because I think, of course, for folks who study and know a lot about Section 1983 and federal civil rights statutes and particularly, how police-related civil rights cases come about, oftentimes, you know, police officers act within the color of law, and they’re still doing unlawful things, right?

So, it’s important for people to realize that under color of law does not mean that people were engaged in lawful things. They were using their power and the authority vested in them by the government to do something, and whether or not that’s lawful was a different question, and so, that’s really what we’ve been struggling here with these cases, is, you know, where do these lines…where do we draw these lines between people doing things that they’re permitted to do under federal law and as a matter of being employed by the federal government?

What are they doing that’s not lawful? Do they have a defense, really, in saying that they were doing no more than necessary to carry out their job? I mean, these are really tricky questions. Mark Meadows had the best case of all the people who are seeking removal so far, and so, the fact that he lost has been very foreboding for the other people who, this week, had removal hearings for themselves, as well.

"There's no real merit to this appeal and there's no real merit should Trump try to file a motion for removal," @neal_katyal tells @CapehartJ. "Everything Judge Jones said yesterday about Mark Meadows applies in spades to Donald Trump." pic.twitter.com/dgg3ITXlkp

— MSNBC (@MSNBC) September 9, 2023

00:17:11.3 Michele Goodwin:

It does raise questions about whether there are certain things that are being conflated. So, Georgia is a red state. Maybe some are saying it’s purple, given the work that’s taken place in recent years. Stacy Abrams comes to mind, and many of the other women who’ve been elected to office, they’re the diversity of officeholders from there, the two senators from the state of Georgia, certainly making it outwardly appear purple, but internally, a red state in terms of the governor and state’s legislature, and one wonders whether there was a bit of hubris on the part of the people who’ve been indicted in this case, that somehow, that would make their case a different kind of case than what it is that you are describing.

00:18:03.5 Professor Anthony Michael Kreis:

Well, I think it is certainly true that Georgia has become a politically diverse and much more competitive state, in large part, because of organizers and demographic changes, but yes, there are some very baseline conservative, you know, I think trends, as well.

00:18:24.8 Michele Goodwin:

But it also seems that, with the conservative trends, as well, that there are some that are standing up and saying don’t interfere in our elections. That we may have a Republican legislature and a Republican governor, and the secretary of state was a Republican, too, but there are times in which the lines are brightly drawn and we can see when lines are crossed, or at least they’re perhaps articulating something along those lines.

00:18:53.2 Professor Anthony Michael Kreis:

Yeah. I think Georgia’s interesting because you do have people who certainly are, you know, in the governor’s office and secretary of state’s office, who are much more…I don’t want to say anti-Trump, but are Trump averse, and who have repeatedly stood up for the validity of the 2020 elections, and have called them, repeatedly, fair, transparent, and accurate. At the same time, you know, the governor has been kind of lukewarm in his support for Trump.

We have passed voter-restrictive legislations in the state in response to the Big Lie and a lot of the conspiracy theories that Donald Trump perpetrated and fed to his followers, and so, it’s a very…you know, it’s kind of this very interesting balancing act that the Republicans in the state have made, and of course, we’ve got, on the other end of the extreme is, like, Marjorie Taylor Greene and other members of Congress and you know, people in the legislature who adamantly support Donald Trump. I don’t know what it is exactly that…you know, how that might play out into the psyche of these codefendants.

But what I do think is, is that there’s a…at least in respect to removal, I think there’s this fear of being tried in Fulton County, Georgia, because Fulton County, it’s a pretty diverse county. It’s about 70/30 Biden county. It’s certainly left of center, but it’s, you know…also, it’s not really a conservative stronghold in the sense of even where the most conservative pockets of Fulton County exist, they’re pretty country club Republicans. Like, they’re Brian Kemp, Brad Raffensperger supporters, and they’re not Marjorie Taylor Greene supporters.

And so, I think these codefendants want federal removal because that would enlarge the jury pool to more rural and exurban areas in Georgia, where they think…I suspect that they’ll have a better jury pool, and so, the politics of the moment are certainly driving legal decisions and legal strategy in this case, particularly in the federal removal, and of course, it plays a part in how Donald Trump has attacked Fani Willis and the Fulton County District Attorney’s Office for being political and all sorts of, you know, different things that he’s alleged.

00:21:23.9 Michele Goodwin:

Well, that’s right, and there’s much to be said about the former president and the kinds of innuendos that have been spread by his supporters, by himself and his supporters, in light of the fact that she is a woman, that she’s a woman of color, that she’s a black woman. Certainly, more to be said on all of that. Our time goes by so quickly, and we learned so much from you, Professor Anthony Michael Kreis. I want to thank you for joining us, and before I let you go, which I don’t want, because there’s so much…

But we’re going to get you back. Any highlights…we always ask, you know, what the silver lining is, and I think the last time that we were together, you know, I thought, well, it’s a kind of struggle to sort of think about a silver lining in the context of all of this, in the backdrop of January 6 and the backdrop of efforts with the Big Lie and to try to get the 2020 election results thwarted, but what do you see as a silver lining to all of this, and what lies ahead in Georgia?

I hope that…the American public can see for themselves the evidence, the witnesses, the narrative that’s being construed and the defenses and make a better…or have a better understanding of what happened here in 2020 and how dangerously close we were to losing our democracy, and I would hope that, by witnessing that, we’ll be able to have a firmer resolve to do better in the future.

Anthony Michael Kreis

00:22:35.7 Professor Anthony Michael Kreis:

Well, I think we’re in for a lot of grief and a lot of drama and a lot more contentious politics as a result of what’s happening in Fulton County, but I will say, if I had to pick one silver lining, it’s that I suspect that we’re going to have most of these defendants in Fulton County Superior Court being tried and not in federal court, and the benefit of that, I hope, is that our trial proceedings, unlike in federal court, are televised and they are open to the public and much more transparent than federal court is.

And so, I hope that the benefit of that is that the American public can see for themselves the evidence, the witnesses, the narrative that’s being construed and the defenses and make a better…or have a better understanding of what happened here in 2020 and how dangerously close we were to losing our democracy, and I would hope that, by witnessing that, we’ll be able to have a firmer resolve to do better in the future.

00:23:40.4 Michele Goodwin:

It’s been my pleasure to have you join us again. Thank you so much, Professor Anthony Michael Kreis. We really appreciate you joining us, and looking forward to continuing this conversation. Thank you so much.

00:23:57.2 Professor Anthony Michael Kreis:

Thank you.

00:23:40.4 Michele Goodwin:

Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it just like it is.

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This has been your host, Michele Goodwin reporting, rebelling, and telling it just like it is. On the Issues with Michele Goodwin is a Ms. magazine joint production. Michele Goodwin and Kathy Spillar are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and also Allison Whelan. Our social media content producer is Sophia Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Natalie Holland, and music by Chris J. Lee.