The Georgia Indictment Is Serious, but It Also Overreaches

National Review Online

Tuesday, August 15, 2023

 

Once again, a Democratic prosecutor has indicted Donald Trump, this time in state court in Fulton County, Ga. Skepticism of these charges, and of the decision to bring them at this time, is appropriate. District Attorney Fani Willis is a blue-city arch-partisan who has used the investigation as a political fund-raising tool. Moreover, the indictment has real flaws, some of them repeating special counsel Jack Smith’s errors. As with Smith’s January 6 case, this one treats as a crime his campaign to get political actors to overturn the outcome of the 2020 election through political processes. The Georgia case also makes additional mistakes. But that does not mean that the charges are unserious. The indictment alleges an array of real criminal activity that deserves the sanction of the law.

 

We reiterate our oft-stated view that Trump’s misdeeds were impeachable, and that Republican voters should avoid the folly of renominating him as a result of his actions. Those decisions, however, are for the Senate and the voters, not for local district attorneys unrepresentative of the nation and unaccountable to it.

 

In the latest indictment, Willis charges 41 distinct felony counts, including an overarching charge (Count One, running 71 pages) under Georgia’s version of the Racketeer Influenced and Corrupt Organizations statute. Trump is named in twelve of the specific felony counts; all 19 defendants are named in the RICO count.

 

The RICO charge allows Willis to accuse Trump of being ultimately responsible for the acts of the other defendants, who include his lawyers, a Justice Department official, and people who purported to cast electoral votes for him after he lost Georgia. This is a heavy-handed use of a law originally written for the Mafia. There could be significant legal challenges regarding whether the sprawling hubs of Trump supporters going about their hopeless, half-baked schemes to maintain him in power amounted to a racketeering “enterprise,” and whether a number of acts Willis portrays as the criminal peddling of false information were actually instances of constitutionally protected — albeit false — speech. Moreover, there are fair questions as to whether Trump or others should be blamed for some of the consequences of what he set in motion, though that is a proper question for a jury to resolve.

 

RICO aside, the specific felony charges mostly do not require the sort of legal adventurism required by Smith’s January 6 indictment, or by Alvin Bragg’s in Manhattan. There are charges of false court filings, false testimony to legislative committees, false evidence presented to Georgia secretary of state Brad Raffensperger, unauthorized access to a county computer database, and an effort to pressure a local election official into giving false testimony during the controversy. There are also process-crime charges involving perjury to the grand jury.

 

Contrast that with the federal indictment covering the same territory. Smith’s indictment, for example, abusively stretches the federal conspiracy statute. The Supreme Court ruled over a century ago that the statute does not cover dishonesty in federal elections, in part because states have the primary responsibility for those elections. Willis, however, charges Trump and his alleged co-conspirators under specific state laws. Smith also tries to hold Trump legally responsible for the Capitol riot; Willis, properly, does not.

 

That said, Willis has gone overboard. She lards up her indictment with allegations about the efforts to pressure state legislators and overturn state electoral votes in other states far out of her jurisdiction. She charges multiple felonies simply for electors’ executing documents that had no legal effect, and were known to all not to be official, without the actions of elected officials to make them so. Much of the indictment consists of political speech aimed at persuading public officials to act, such as Trump’s giving nationally televised speeches and tweeting.

 

Perhaps most alarmingly, Willis charges lawyers such as John Eastman and Kenneth Chesebro with crimes for giving bad legal advice. Their advice was, indeed, bad to the point of being arguably frivolous in a civil-law sense. (Eastman is presently defending an effort by the California bar to sanction him.) But if pressing dubious legal theories of constitutional law onto public officials in order to induce them to exceed the proper scope of their powers is now a crime, the faculties of American law schools could be swiftly denuded of progressive legal academics.

 

Finally, there is the matter of timing. As with Smith’s second indictment, much of this case could have been brought in 2021. That might have been more feasible if Democrats had not insisted upon a partisan congressional investigation. Had Trump been charged sooner, it may not have served Democrats’ purpose of leaving him wounded with unresolved cases into the general election, but it at least might have brought this saga to a close and deterred Bragg from bringing the weakest of the Trump cases. Whether deliberately planned or not, Willis’s prosecution of Trump fits perfectly within the Democrats’ 2022 pattern of trying to elevate “stop the steal” candidates in Republican primaries so that Democrats can sink them in the general election.

 

For all its flaws and for all of the bad precedents that may be set by this four-ring circus as a whole, the Georgia indictment raises issues that a state prosecutor can and should properly address. It will yet again give Trump and his confederates the opportunity to make their stolen-election case in court, should they desire — something they have invariably failed to do thus far. And it will yet again remind the nation of how appalling Trump’s conduct was — conduct for which he remains wholly unrepentant, and which he wishes to make the central issue of the 2024 presidential campaign.

 

Republican voters would be wise not to take him up on that last offer.