In a compound or incorporated crime, the government has to prove something that includes another crime. For example, Bragg’s false statement charges allege that Trump tried to cover up other crimes. Willis alleges that Trump and his co-defendants tried to solicit various Georgia officials into committing other crimes. But here’s the thing: Both Bragg and Willis have argued that they don’t have to say what the other crime is. Bragg argued that the legal violations Trump was trying to cover up included the entire federal-election code. And Justice Merchan bought it, concluding that Trump could be indicted on the theory that he was trying to conceal a violation of federal election laws or state election laws or state tax laws, entirely without regard to whether Bragg could show that the underlying conduct would actually violate any of those laws. So much for a nation of laws.
This is a particularly menacing way in which to bring a criminal charge, because if there are multiple different theories of how the defendant’s conduct was illegal, there is a grave risk that the jury will convict even if it is not unanimous on any one theory. So much for the protection of requiring prosecutors to convince a jury to agree unanimously beyond a reasonable doubt.
Judge McAfee didn’t buy that.
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