Is the Georgia Indictment of Donald Trump Politically Partisan?

The long-anticipated Georgia indictment of Donald Trump was announced last night at 10:30 p.m. Georgia time by Fani Willis, district attorney in Fulton County, Georgia. Reuters reported that the indictment was put on the county web site prior to the final vote of the Grand Jury. Although it was taken down almost immediately, Reuters saw it and reported it. It seems to me that there is something wrong when the office of a district attorney announces an indictment before there is actually an indictment!

In an article published in The Daily Signal, Han von Spakovsky wrote that the indictment is an “attack on the First Amendment and the very structure of the American legal system” and “a profound assault on our democratic republic and the rule of law.” I assume that von Spakovsky knows what he is declaring. He is “a senior legal fellow at The Heritage Foundation, a former commissioner on the Federal Election Commission, and a former counsel to the assistant attorney general for civil rights at the U.S. Department of Justice.” He is also “a member of the board of the Public Interest Legal Foundation.” 

Von Spakovsky declared that there is “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.” He further wrote that “Willis is trying to criminalize free speech,” and declared that the indictment will “have a chilling effect on anyone in the future who might dare to question the results of an election.” He explained that “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.”

Besides the problem with the First Amendment, von Spakovsky indicated that there is a problem with Willis’s naming Trump’s attorneys as co-conspirators.

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.

Another problem seen by von Spakovsky is that the 98-page indictment with its 41 counts are all “centered around Georgia’s ‘RICO’ statute – the Racketeer-Influenced and Corrupt Organization Act” and “includes ‘co-conspirators’” such as Mark Meadows and Rudy Giliani. “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.” Why are they included? “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.”

Von Spakovsky explained why Willis used the RICO claim and then wrote, “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.”

Von Spakovsky also noted that Willis overstepped her authority: “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.”

In a list of Trump’s “illegal” acts, von Spakovsky noted that Willis put as number one a speech that Trump made on Nov. 4, 2020, “making a ‘nationally televised speech falsely declaring victory in the 2020 presidential election.” She also listed press conferences where “false statements concerning fraud” were made by other defendants, tweets made by Trump.

Von Spakovsky wrote that “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 … 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.”

Von Spakovsky noted that even special counsel Jack Smith acknowledged 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.”

Continuing, von Spakovsky noted that it does not matter if “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.” [Emphasis added.] He noted that Abrams did not win either election, so she was wrong to claim that the election was stolen from her. However, she had the freedom to make the claim.

Trump and his “co-conspirators” were charged with trying to speak to state legislators about the election results. The First Amendment protects their right to speak freely with anyone as well as their actions and their petitioning governments for redress.

Von Spakovsky questioned Willis’s claim that she was acting within her legal authority. She has the authority to act in Fulton County, Georgia, but not in other counties in the state or in other states. Trump and the other defendants also had the right to persuade state legislatures to “appoint presidential electors” that would vote for Trump. He shared a comment from his 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 reasons. What she did – just like what Trump was doing – wasn’t a criminal violation of the law.

Von Spakovsky’s article continued and covered several other problems with the Georgia indictment, such as the “conspiracy” of 18 attorneys general” and the chances of Trump getting a fair trial in a Democrat-controlled country. He concluded, “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.