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Law school professors express Republican empathy for media bias of Trump trials

By: Steve Schuster, [email protected]//September 15, 2023//

Cleta Mitchell

Cleta Mitchell. FILE PHOTO / AP

Law school professors express Republican empathy for media bias of Trump trials

By: Steve Schuster, [email protected]//September 15, 2023//

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During an exclusive interview with the Wisconsin Law Journal on Monday, North Carolina-based attorney Cleta Mitchell  (former Milwaukee Foley & Lardner partner) provided the Wisconsin Law Journal with a number of recently filed court documents in Georgia involving the special purpose grand jury that investigated former President Donald Trump and various allies and associates, including Mitchell.

Among those documents was a motion filed Sept. 8 in Fulton County, Georgia, on behalf of attorneys for Rudy Guiliani.

Cleta Mitchell

“There has been zero coverage in any publication about the motion filed on Friday, Sept. 8, in Fulton County by lawyers for Rudy Guiliani to require the district attorney to specifically state which statements, acts and plans were criminal in nature or would give rise to a RICO charge,” Mitchell said, noting opportunities for improvement with mainstream media’s coverage of former President Donald Trump and other Republicans.

“The coverage of these indictments and everything leading up to them has been nothing short of astonishingly vacuous and one-sided against President Trump and anyone associated with him. The criminalization of the practice of law should concern every lawyer and judge in America – because that is exactly what is happening here and has been happening for more than 2-½ years. These proceedings against President Trump and his associates and lawyers are tyrannical. They mutilate every principle of American jurisprudence. The legal profession needs to step up, speak out and demand an end to this partisan manipulation of the rule of law. It is time,” Mitchell added.

According to court documents, Guiliani’s attorneys argued, “the state has comingled the alleged overt acts and purported racketeering activity without specifying the manner in which they are to be used.”

Attorneys further argued, “by incorporating these foreign criminal offenses (which, if proven, would be crimes in these other states) into a Georgia indictment to establish the RICO violation here, the state has eliminated this defendant’s constitutional protection against subjecting him to punishment for the same offenses twice.”

Court documents also noted Georgia’s RICO statute is modeled after the Federal RICO statute and, as such, can derive guidance from interpretations of the Federal statute.

Mitchell also said, “There has been zero coverage in the ‘news’ about the report issued by the Congressional Research Service on Dec. 8, 2020, which discussed the history and legal precedent of states sending competing slates of electors to Congress. There has been zero media attention to the fact that there is a transcript of the meeting of the GA Trump electors held on Dec. 14, 2020, in which they clearly stated they were meeting as a contingency to preserve President Trump’s rights in the pending election contest that, as of that date, had not yet been adjudicated because no eligible judge had been appointed.”

Ronald Carlson, professor emeritus of law at the University of Georgia School of Law, during an interview with the Wisconsin Law Journal on Wednesday, agreed with Mitchell on the lack of coverage by the media.

“She touched on an important point. There has especially been sparse coverage of the history of political parties in states selecting alterative electors in close elections,” Carlson said.

During an interview with the Wisconsin Law Journal on Wednesday, Kay Levine, Emory Law School professor of law and dean for research, said the media has done a good job covering previous stories involving what the mainstream press has referred to as “fake electors.”

“The state sending competing electors have received a lot of media coverage with Nixon Kennedy in Hawaii back in the in 1960s,” Levine said.

Ironically, in the official transcript of the Trump electors meeting provided to the Wisconsin Law Journal by Mitchell, Smith expressly stated, “We are going to conduct this in accordance with the Constitution of the United States, and we’re going to conduct the electorate today similar to what happened in 1960 in Hawaii.”

As previously reported by the Wisconsin Law Journal, Mitchell who is based in North Carolina, was a former Milwaukee partner with Foley & Lardner and current board member of the Bradley Foundation. She was recommended to be charged by the same Georgia special purpose grand jury that initially investigated former President Donald Trump and his allies’ attempts to overturn the 2020 presidential election. The same special grand jury report recommended criminal charges for three dozen people, including 21 who weren’t charged last month.

In Georgia, a special grand jury has no binding authority on a district attorney’s office or grand jury indictment, according to Levine.

During an interview with the Wisconsin Law Journal on Wednesday, Levine said, “A special grand jury is a feature of Georgia law. It’s a community body review that gives an early read to a prosecutor’s office. They present their findings and then an indictment grand jury decides who should be indicted.

Therefore, the special grand jury’s vote that Mitchell be indicted is merely a recommendation, not binding.

Also as previously reported by the Wisconsin Law Journal, Georgia officials say Trump, Mitchell and several others attempted to interfere with the 2020 presidential election.

On Jan. 2, 2021, Mitchell participated in the phone call then-President Trump made to Georgia Secretary of State Brad Raffensperger to locate 11,780 votes to overturn President Joe Biden’s victory in the Peach state. Prior to that, on Dec. 14, 2020, Mitchell was also allegedly involved in a meeting with more than a dozen Republicans at the Georgia State Capitol where documents were executed falsely claiming Trump won the Georgia electoral college.

On Wednesday, Levine noted many Emory alums are on Trump’s legal defense team.

“Some of the defense counsel are Emory professors and are outstanding lawyers doing their jobs. The level of lawyering in this case by the prosecution and very talented defense shows a lot attention to the rights of their clients,” Levine said Wednesday, noting that she wished this level of detail was applied to the general public.

“I wish more cases had this level of attention to detail; many times cases don’t get moved quickly,” Levine said.

Levine also expressed empathy for Mitchell.

“In expressing outrage and anger that people she believes are innocent have been charged with crimes, Ms. Mitchell is in good company – lots of people across the country feel the same way when their friends and loved ones are charged with crimes, when they believe those people are innocent. But in our system, outrage and anger do not derail procedurally proper court proceedings. Moreover, we are still very early in this case. Charges have just been filed. But charges are just that – charges. They are not evidence of anything. We use trials to test the evidence, to see if the charges are actually supported. All of the people who have been charged have well-resourced and well-respected defense attorneys, and I’m sure the legal teams will be focused on, and prepared to, test the evidence at pre-trial hearings and at trial,” Levine added.

As previously reported, last Friday, in a rare move, a Fulton County Georgia judge released the special grand jury’s report obtained by the Wisconsin Law Journal, just months before the 2024 election.

The Charlotte Observer reported last Friday, to date, Mitchell has not been charged with a crime, but proposed charges include:

  • criminal solicitation to commit election fraud. influencing witnesses;
  • forgery;
  • criminal solicitation;
  • intentional interference with performance of election duties;
  • concealment of facts and fraudulent documents in matters within jurisdiction of state or political subdivisions; and
  • false official certificates or writings by officers or employees of state and political subdivisions. two counts of false statements and writings.

The Charlotte Observer also reported 26 Fulton County residents served on the special grand jury, though three of its members were alternates. They heard from 75 witnesses over a six-month period.

The Fulton County District Attorney’s office is in a difficult position said, Carlson said during an interview with the Wisconsin Law Journal on Wednesday.

“Will the district attorney show all cards during (attorney Kenneth) Chesbro’s hearing? On the one hand, the district attorney doesn’t want to show her full hand. However, she cannot afford to afford optics of bad loss this early on,” said Carlson.

Carlson said Mitchell’s comments were well calculated.

“Mitchell’s comment is a full-throated blast against the mainstream press. It was a careful and stark choice to avoid blasting the DA’s office, as Trump did. Since Mitchell herself could still be charged in a new indictment, she was careful not stepping on the toes of the Fulton County DA, which was a good choice,” Carlson said, noting that “the big elephant in the room are the RICO charges she has avoided so far, which have long sentences.”

“Mitchell really dodged a bullet,” Carlson said.

According to the Bradley Foundation, Mitchell has more than four decades of experience in law, politics and public policy. Mitchell has advised nonprofit and issue organizations, corporations, candidates, campaigns and individuals on state and federal campaign finance law, election law and compliance issues related to lobbying, ethics and financial disclosure. Mitchell practiced before the Federal Election Commission, the ethics committees of the U.S. House and Senate and similar state and local enforcement bodies and agencies.

To date, Trump and 18 co-defendants face state charges in Georgia for trying to overturn the 2020 election. As previously reported by the Wisconsin Law Journal, attorneys for former President Donald Trump moved a lawsuit seeking to bar him from running again for the White House from state to federal court in the first step of what promises to be a tangled legal battle that seems destined for the U.S. Supreme Court.

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