Former President Donald Trump — and 18 other people — are charged jointly in a 41-count RICO criminal case in a Georgia state court. The indictment alleges that the defendants engaged in a racketeering conspiracy to overturn the 2020 presidential election in Georgia. This is a cumbersome case as it stands. Prosecutors have their hands full.
This is a cumbersome case as it stands. Prosecutors have their hands full.
In many years as a federal prosecutor, I tried numerous cases but never one with 19 defendants. Or even nine. Perhaps “cumbersome” understates the problem: The number of defendants in this case is practically unmanageable. Trying 19 people simultaneously, as Fulton County District Attorney Fani Willis said she plans to do, would be a logistical challenge for the court, and it could take a very long time.
On the other hand, cases with multiple defendants typically narrow after indictment. This is because many defendants plead guilty, and many of those who plead guilty become government witnesses at the trial of remaining defendants.
Indeed, the rules generally provide defendants facing trial with two related incentives to plead guilty and to cooperate. First, they can get “credit” for accepting responsibility for their criminal conduct. Second, they can get “credit” for assisting in the investigation and prosecution of others, including by testifying truthfully at trial. These incentives move a lot of defendants into the government column. That narrowing is common, and it is something Georgia prosecutors presumably expect might happen as time passes. But will the Georgia team see this here?
Trump’s constant attacks on the proceedings, the judges and the prosecutors have caused quite a bit of consternation. Trump’s social media outbursts are full of vile language and fiery rhetoric intended to paint himself as the victim of unjust, oppressive prosecutors. These kinds of statements can be dangerous. Judges and prosecutors, however, will not be dissuaded from their work because of them. That comes with the territory. They will deal with it. There is, however, a deeper problem. Those attacks can have a chilling effect on witnesses. That may be Trump’s design.
This month, after his third indictment alleging related illegal efforts to overturn the 2020 presidential election, Trump wrote: “If you go after me, I’m coming after you!” Coming after you how? Physically? Reputationally? By stirring up the dark forces he used to storm the Capitol on Jan. 6? Was his message intended for prosecutors? Perhaps. For the judge? Maybe. But I am certain that his 18 co-defendants in Georgia understood that message’s potential implications for them, too. Trump’s rantings may be an effort to keep his co-defendants, well … co-defendants. Trump’s rantings may be an effort to keep his co-defendants, well … co-defendants. It may signal to them that they should not choose to mitigate their own risk by pleading guilty and testifying against others (including him). It may also signal to them that whatever punishment the justice system metes out will not be as harsh as the punishment Trump — or his minions — may attempt to mete out. There are 18 people out there trying to decide how best to defend themselves from serious criminal charges. Pleading guilty and becoming witnesses for the prosecution is one path forward for them. It may be in their best interests to do exactly that. But in Trump’s world, there is only one interest that matters — his. Anyone who turns on Trump is an enemy. All the criminal cases against Trump will be interesting to watch, though the choices these 18 defendants make in the Georgia case will be particularly interesting. There are lots of good reasons a person would not want to be a defendant in a criminal case. There are additional reasons a person would not want to be a defendant in a criminal case with Trump. The 18 others may yet act in their own best interests. Or not.
Chuck Rosenberg
Chuck Rosenberg is a former United States attorney, senior FBI official and Drug Enforcement Administration chief. He is currently an MSNBC legal analyst and the host of "The Oath" podcast, a production of NBC News and MSNBC. 
