The attack on the First Amendment and the very structure of the American legal system by the Star Chamber of Fulton County, Georgia, District Attorney Fani Willis is a profound assault on our democratic republic and the rule of law.
There’s no other way to characterize the politically partisan indictment of former President Donald Trump and 18 other defendants (along with 30 unindicted coconspirators) for legally questioning the legitimacy of the outcome of the 2020 election in Georgia.
Willis is trying to criminalize free speech and have a chilling effect on anyone in the future who might dare to question the results of an election.
Willis manufactured this egregious “case” with seeming unforgivable ignorance of the freedom to speak, to engage in political activity, and to petition the government for a redress of grievances that is protected by the First Amendment.
Lawyers as Co-Conspirators? Seriously?
By naming as alleged co-conspirators the lawyers who were representing Trump and providing him with advice and counsel in the legal actions that were in the state and before legislators during public hearings and in private conversations, Willis is also attacking the fundamental way that our justice system works, in which lawyers are tasked with vigorously pursuing the interests of their clients.
Under the crazy legal theories being pushed in her indictment, every lawyer in Georgia who represents a defendant and makes statements that turn out to be wrong or legal arguments that are ultimately rejected could be accused of conspiring with his or her client to commit a crime.
In other words, they could be charged with a crime for doing what the professional code of conduct tells the lawyer he is supposed to do; namely, represent the interests of his client to the best of his abilities.
The 98-page indictment contains 41 counts, all of which are centered around Georgia’s “RICO” statute— the Racketeer-Influenced and Corrupt Organizations Act—and it includes “co-conspirators,” among them Trump’s former chief of staff, Mark Meadows; and Trump’s former lawyers, among them Rudy Giuliani.
This is a statute that was designed to go after mob operations and the kinds of criminal conspiracies run by dangerous drug cartels, not candidates contesting an election outcome.
Trump as Tony Soprano? Seriously?
But Willis apparently thinks that Donald Trump is the equivalent of Tony Soprano and the other defendants are his Cosa Nostra wiseguys.
And why? Because, according to the indictment, they “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Donald Trump.”
How does RICO come into it? Willis claims that the “conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states,” including Arizona, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin, and the District of Columbia.
This indictment is the most outrageous, outlandish misuse of a RICO statute that I have ever seen and it fails to establish a credible violation of the law.
And apparently, Fulton County DA Willis thinks she not only has statewide jurisdiction in Georgia, but also has jurisdiction over acts that supposedly happened in six other states and the District of Columbia.
I am sure the attorneys general of those states will be surprised to learn that.
In order to justify her fantasy, Willis lists a series of actions that occurred from Nov. 4, 2020, to Sept. 15, 2022, which were supposedly overt acts in furtherance of the conspiracy. But Willis lists incident after incident (what the indictment terms “Acts”) of perfectly legal actions that not only don’t violate any laws, but are fully protected under the First Amendment.
Speech on TV an ‘Illegal’ Act? Seriously?
The first “illegal” act listed is Trump on Nov. 4, 2020, making a “nationally televised speech falsely declaring victory in the 2020 presidential election.” She makes similar ridiculous claims against other defendants, such as Giuliani, for example, because he “appeared at a press conference at the Republican National Committee Headquarters” making similar “false statements concerning fraud” in the 2020 election.
Willis even laughably lists as part of the unlawful conspiracy many public tweets by Trump, such as one on Dec. 3, 2020, and another on Dec. 30, urging the public to watch the live coverage of the Georgia legislature’s hearings on the 2020 election. Or another tweet on Dec. 30 thanking the Georgia legislature “for today’s revealing meeting!” that Trump said uncovered “Massive VOTER FRAUD.”
Under that bizarre notion, would the legislators who participated in those hearings, listened attentively, and considered the allegations that had been raised be unindicted co-conspirators? That is how nutty Willis’ claims are—claims that are a direct attack on political speech.
Willis should have received a failing grade in constitutional law in law school since Trump’s speech and all of the other public and private statements made by Giuliani and the other political targets of her indictment—sorry, I mean defendants—were fully within their rights under the First Amendment to engage in “freedom of speech” and voice their complaints, concerns, and grievances about the election—even if those turned out to be wrong.
Even special counsel Jack Smith acknowledged in the federal indictment that was returned a couple of weeks ago that “[t]he Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
Apparently, Willis doesn’t agree.
If It Was Illegal, Why Wasn’t Abrams Charged?
Whether or not Trump or Giuliani or anyone else was right or wrong about what happened in that election is irrelevant.
They had every right to make that claim then, and every right to make that claim today, the same way that Democrat Stacey Abrams had every right to make the identical claim about her two runs for governor in Georgia.
She was clearly wrong, and Republican Brian Kemp is the validly elected governor of the state. But the fact that she and her supporters and allies are wrong doesn’t make them part of some grand criminal conspiracy to overturn an election.
But then, Abrams is a Democrat like Willis, so I am sure the thought of targeting Abrams with similar charges never occurred to Willis.
The indictment recites other acts that Willis claims were in furtherance of the conspiracy and intended to interfere with the election results that involved various defendants, such Giuliani and Meadows contacting state legislators as well as members of Congress to persuade them to take action to correct what they viewed as a stolen election.
Texting for Phone Numbers Illegal? Seriously?
That included the supposedly illegal action of Meadows, listed as Act 8, of texting a message to Rep. Scott Perry, R-Pa., asking him for “the number for the speaker and the leader of PA Legislature” because “POTUS wants to chat with them.”
No, really: That is listed as a criminal violation of the law!
Keep in mind that the First Amendment’s free speech provision protects the right of Trump, Meadows, Giuliani, and others to speak to state legislators about any subject and any claims—even if those claims, for example, turn out not to be true.
But another portion of the First Amendment protects their actions as well.
An often overlooked part of the First Amendment is the right of all Americans to “petition the Government for a redress of grievances.” Trump certainly had a grievance: He believed (and still believes) the election was stolen from him because illegal votes were counted and the votes of some legal voters were not. Trying to persuade state officials to correct that is fully within that protected right under the First Amendment.
Moreover, to the extent that Willis is trying to indict Trump for such actions while he was president, he has a very strong argument that any actions he took as president after November 2020 and before Jan. 20, 2021, including with state and local legislators and officials, were within the ambit of his official actions as president, and presidential immunity applies.
It may also apply to subordinates within the executive branch, like former Justice Department lawyer Jeff Clark, who is a named defendant.
Within Her Legal Authority? Seriously?
Whether those actions by the president and executive branch officials questioning the election outcome in several states or the process of the electoral vote count in Congress were misguided or not is irrelevant and not subject to criminal indictment by a politically motivated district attorney who is acting far outside her legal authority and jurisdiction.
That’s particularly true when you read all of the supposedly unlawful acts that Willis lists involving Trump’s actions in Washington, not Georgia, over the Jan. 6 joint meeting of Congress, where she includes things like a telephone call by Trump to then-Vice President Mike Pence in which Trump “solicited him to disrupt and delay the joint session of Congress on January 6, 2021.”
The Fulton County indictment also suffers from the same defect that affects the federal indictment by special counsel Smith.
Willis claims that it was “unlawful” for Trump and other defendants to try to persuade state legislators in states such as Pennsylvania, Nevada, and Arizona to “appoint presidential electors” that would vote for Trump. She targets David Shafer, a former state senator and the former chairman of the Georgia Republican Party, for the same reason; namely, setting up an alternative slate of electors to be utilized if the Trump campaign was successful in its legal fight over the outcome of the election.
Willis is just plain wrong.
As I explained in my analysis of the federal indictment:
But the idea of alternative electors isn’t new and has happened in prior presidential elections without anyone claiming they violated federal criminal law, including the 1876 contest between Samuel Tilden, a Democrat, and Rutherford B. Hayes, a Republican, when Oregon, South Carolina, Florida, and Louisiana sent two conflicting slates of electoral votes to Congress.
It happened again in 1960, when the alternative votes of John Kennedy electors from Hawaii were counted instead of the votes of the slate of Richard Nixon electors that was originally certified by the governor.
In 2000, then-Rep. Patsy Mink, D-Hawaii, suggested that then-Vice President Al Gore designate a slate of contingent electors for Florida, but Gore finally conceded before that could occur. Mink was never charged with trying to “obstruct” an official proceeding, and for good reason. What she did—just like what Trump was doing—wasn’t a criminal violation of the law.
Contingent Electors Illegal? Seriously?
Moreover, under § 21-2-172 of the Georgia Code, the authority to choose electors is given to the “state party or body chairperson of such political party,” which means that Shafer, when he was the chairman of the Georgia GOP, was acting in compliance with state law in selecting a group of contingent electors as a backup in case any of the election contests were successful either in court or with the state legislature.
The indictment makes no mention of this statute, which Willis conveniently ignores.
All of these charges about the contingent electors are especially dangerous. Party activists should be encouraged to participate in the hurly-burly of the political process without having to worry about the criminal law being weaponized against them.
By the way, all of the claims about what happened in Georgia and other states that Willis says were “false statements” and therefore illegal were supported in whole or in part by the attorneys general of 18 states.
Keep in mind that the Texas attorney general filed a motion with the U.S. Supreme Court asking for permission to file a complaint also contesting the election outcomes in Pennsylvania, Michigan, Wisconsin, and Willis’ home state of Georgia. In fact, Willis alleges in the indictment that it was wrong for Trump to confer with Georgia Attorney General Chris Carr about this motion, again, something he had every right to do.
Seventeen states, led by Missouri, filed a joint amicus brief supporting the Texas complaint because of their serious concerns about the irregularities that occurred in the election, including in Georgia.
18 Attorneys General Conspired? Seriously?
The Supreme Court refused to allow the case to go forward, but Willis is essentially saying that the attorneys general of 18 states were engaging in a conspiracy under her state’s RICO law to try to “unlawfully change the outcome of the election in favor of Trump” by supporting such claims, including in Georgia.
That is just how odious this indictment is and how wrong her claim is that all of the defendants in this case “knew” that the claims they were making about the problems and irregularities in the Georgia election were false.
The claims made against the lawyers in the case, such as Ray Smith (an outstanding, ethical, highly professional lawyer I’ve known for 30 years), are especially obnoxious and a blatant attack on the way our justice system operates. He supposedly engaged in a criminal violation of the law by presenting the claims of his client to state legislators at the legislative hearings investigating the election and by participating in efforts to provide a contingent, alternative slate of Trump electors that could be used by those legislators if they determined that the claims about the invalidity of the election were correct.
‘Competent Representation’ Wrong? Seriously?
Smith was doing exactly what lawyers are called on to do by the State Bar rules that govern Georgia lawyers (Rule 1.1 and 1.3); namely, to provide “competent representation” and to “act with reasonable diligence and promptness in representing a client.”
Willis is ignoring not only this professional rule, but also the warning in Rule 1.2 (b) that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” By attacking the lawyers who were representing Trump in court and before state officials, Willis is attacking the very essence of our adversarial legal system and the way it works in ensuring that individuals are able to obtain legal representation.
There are charges in the indictment over claimed attempts to “influence witnesses” by “purporting to offer” an election worker with knowledge of what happened during the vote tabulation in the State Farm Arena with “help.”
That witness was afraid to talk to one of the defendants “because he was a white man” and that offer to help and supposedly scaring a witness because the defendant was simply a different color (?!) is a remarkable claim, one in which we need to know the facts of what really happened, rather than the grand jury’s fanciful claims to determine if there was actually a violation of the law.
Similarly, there are allegations about illegal access to voting equipment in Coffee County, where we don’t really know the facts, since we cannot trust the biased grand jury’s version. There is certainly a possibility that state law was violated. But such a violation would only pertain to the individuals involved in the breach, and not anyone else who had no knowledge of, or participation in, whatever happened.
Fair Trial in Democratic County? Seriously?
Unfortunately, just like in the District of Columbia, where the federal indictment over alleged interference in the election was filed, Fulton County is a Democrat-dominated county that voted overwhelmingly for Joe Biden in the 2020 election.
The ability of Donald Trump or any of the other defendants—all of them Republicans—to get a fair trial there is virtually nonexistent. And that is certainly true with a prosecutor who was already disqualified from targeting one of the alternate electors, Lt. Gov. Burt Jones, because she hosted a fundraiser for his Democratic political opponent in the election in which Jones was elected.
In other words, Willis hosted a fundraiser for someone who was running against an individual who she had publicly labeled as a target of a criminal investigation that she was conducting.
That shows what a partisan she is and how her political ambitions are driving this criminal proceeding. She was an obscure, unknown local prosecutor who apparently sees this case as her ticket to national prominence within her political party.
Rule 3.8 of Georgia’s Code of Conduct cautions prosecutors that they must not prosecute a charge “that the prosecutor knows is not supported by probable cause.” This spurious indictment fits squarely within that warning.
In fact, Willis reminds me of the infamous former local prosecutor in the Duke lacrosse case, Mike Nifong. In 2015, he was disbarred in North Carolina for knowingly pursuing a false rape case against members of the Duke team. He did so to boost his chances to win the next DA election, engaging in “intentional prosecutorial misconduct” that involved “dishonesty, fraud, deceit and misrepresentation” according to the state bar’s disciplinary committee.
Unfortunately, Willis is trying to boost her political career at the cost of justice, the First Amendment, and fundamental fairness in the election process. For that, she should be ashamed.
The author, Hans von Spakovsky, is licensed to practice law in Georgia and is a former county election official in Fulton County.
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