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Download the Viator app now to use code VIATOR10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a very happy Friday after yet another very eventful week in legal news. Now, I understand that most of you who listen to this podcast struggle
I'm going to go ahead and get started.
If, and really when, Jack Smith charges Donald Trump for his effort to steal the 2020 election, Fannie Willis should stand down. I know, I know, I can hear the objections. Why should Willis, the elected Democratic Party district attorney for Fulton County, why should she step aside? Doesn't she have the right and the duty to vindicate violations of state law? Why does Trump deserve a break? And for those who want to see Trump toppled and perhaps locked up, the more charges, the merrier, right?
Not necessarily. Despite the initial rush that yet another indictment might provide, and that would be the fourth for those keeping track, a decision by Willis to forego a Georgia state level Trump indictment is ultimately in the best interest of prosecutors collectively and in protecting the legitimacy of the rapidly unfolding prosecutions of the former president.
It now seems that Smith, the DOJ special counsel, will beat Willis to the punch on Trump. Though, given that both the feds and the Fulton County DA have let over two and a half years lapse without charges, this has been a race between a tortoise and an even slower tortoise. In fairness, on the DOJ side, it's Merrick Garland's fault for letting nearly two years pass without action. Jack Smith has acted swiftly since he took office in November 2022.
We now know that Smith has sent Trump a target letter relating to DOJ's sprawling investigation of the effort to steal the 2020 election. Most, but not all, but most people who receive target letters eventually become criminal defendants. You'll recall, of course, that Smith sent Trump a target letter a few months back on the Mar-a-Lago documents case, and Trump got charged just days later.
Meanwhile, Willis has all but announced through a series of public declarations that she's going to indict Trump in early to mid-August for his effort to steal Georgia's electoral votes in 2020. Willis claims she's merely giving the local authorities a heads up so they can be prepared for something big, wink wink. But that obviously could have been done behind closed doors rather than by a letter that immediately made its way to the national media. Alas.
Assuming Smith does charge Trump first, his indictment almost certainly will subsume Willis's. By all appearances, Smith will soon charge Trump with a wide-ranging effort to steal the election, including in Georgia, of course. Willis's likely charges, therefore, will become duplicative and unnecessary. Why do we need two indictments, one federal and then another at the state level, when the latter will address conduct already covered by the former? Sure, Smith and Willis might end up taking slightly different angles —
And the charges could differ in marginal respects. Of course, Smith can charge federal crimes while Willis can charge Georgia state offenses. But by and large, they're going to cover the same core of conduct, Trump's effort to steal the 2020 election broadly in Smith's case and more narrowly in Georgia in Willis's case.
What good is there to having two sets of charges covering the same basic ground? In fact, DOJ formally recognizes that it's wasteful and unnecessarily punitive for the feds to pile on where state authorities already have charged a person for substantially related conduct.
The same applies going in the other direction. And if one thinks Willis should indict Trump, then where does it end? Trump tried to steal the election in seven states. Should local prosecutors from Pennsylvania, Wisconsin, Michigan, Arizona, New Mexico, and Nevada each pile on their own charges as well? Should Trump face 10 indictments? And yes, I do intend that as a rhetorical question.
Then there's the need to make charges against Trump pardon proof. Indeed, there's little doubt that if Trump wins the presidency in 2024, all DOJ federal cases are out the window. Either Trump will order his new DOJ to dismiss all charges or he'll try to pardon himself. We don't know for sure if a self-pardon is constitutional, but the only way to challenge it is if DOJ brings a new charge and then litigates the issue, which won't happen in a new Trump administration.
So the thinking goes, we need state charges because a hypothetical Trump 47 can't pardon state crimes. But let's be real here. If Trump does retake the White House, there is absolutely no way he will be tried criminally on state charges while he's the sitting president.
So what are we really talking about then? A series of state trials in 2029 when Trump is an 82-year-old two-term former president for conduct that happened nearly a decade prior? I'm not holding my breath for that. And is that prospect worth the cost of bending fair practice now?
If Willis does file a second set of election related charges, she will lend fuel to the inevitable cries by Trump and his apologists that this has all become a wild Democratic Party free for all. Where a bunch of partisan prosecutors turn to the criminal justice process to kneecap the current Republican presidential frontrunner who threatens to take down the vulnerable Democratic incumbent.
Those claims generally lack merit, but you can't ignore that they're out there and will become more widespread. Like it or not, public perception and legitimacy are intertwined, and they both matter. If some substantial portion of the populace believes that a series of prosecutions are politically driven or overwrought, then true or not, that undermines confidence in our justice system. And if you're not into highfalutin DOJ principles,
Consider this pragmatic concern. The general public is also the jury pool. If one future juror believes that this has become a partisan feeding frenzy, then watch that case go down in flames. And that brings me to my second argument.
Willis's investigation has been a debacle. It's somehow become verboten to criticize Willis. She seems to have captured the awe and affection of many in the legal media, but the facts speak for themselves. Willis's investigation has been unforgivably sloppy, hampered by prosecutorial incompetence, and hopelessly tainted by her own self-interested politics. This is not an opinion. This is fact. Let's run it down. First,
Willis has already been kicked off a piece of her case because of a flagrant political conflict of interest. During her investigation of Trump, Willis served a subpoena on Georgia Republican Burt Jones, who was then running for lieutenant governor. And then she hosted and headlined a fundraiser for Jones's Democratic electoral opponent. The judge, who generally has been very deferential to Willis, excoriated her. He asked on the record, what were you thinking? While noting that her conduct created, quote, horrible optics and was, quote, problematic.
You bet. Willis is lucky she only got kicked off the Jones-related aspects of the case. She could and arguably should have been disqualified altogether. It gets worse. In July 2022, Willis served a series of subpoenas on high-profile targets, including U.S. Senator Lindsey Graham.
She promptly tweeted out a political cartoon celebrating the subpoenas and ridiculing Graham. It depicts Willis sitting coolly in a fishing boat, hooking a big fat fish on a line with the caption, I know you'll do the right thing for the swamp, Lindsay. And Willis used that cartoon to solicit donations to her political campaign. This is simply unacceptable.
If you happen to love Willis and despise Lindsey Graham, just imagine for a moment if an elected Republican DA in a deep red county subpoenaed, let's say, Senator Elizabeth Warren and then gleefully used that subpoena to raise campaign cash. How'd you feel about that? This was no opportunistic one-off, by the way. Willis also teamed up with a Democratic Party operative on a Twitter drive to raise funds and followers based on her work on the ongoing Trump investigation.
While Willis has enriched herself politically and basked in the spotlight, she also has overstepped the boundaries of sound, fair prosecution. During the pending investigation, she's given nearly 40, four zero interviews to over a dozen media outlets.
The supervising judge noted disapprovingly at one point that she is, quote, on national media almost nightly talking about the investigation, end quote. During those interviews, Willis improperly gave her opinion that the conduct under investigation was indeed criminal and that Trump acted with criminal intent, the very issues before the grand jury, which has not yet voted. Making matters worse, the judge who presides over the grand jury, who, by the way, has also done a media tour of his own, ahem,
He has made improper public comments about witnesses who invoke the Fifth Amendment. At one point, he idiotically, I don't have a better word, idiotically responded to a witness's invocation of the Fifth Amendment by asking, quote, but if they did nothing wrong, why aren't they talking to the grand jury? End quote. This, folks, is the opposite of what the Fifth Amendment is about.
And I'll spare you a full recounting of the unforgettable, giggling special grand juror who made a mockery of herself and the investigative process by going on a publicity tour and spilling the beans about what the grand jury was doing behind closed doors.
Here's the bottom line. Willis has made a mess of her case, and it's now unnecessary anyway. Her charges likely will add nothing to what Trump is likely to face from DOJ. And if she does hop aboard the Trump indictment train, her indictment will be number four and the second returned by an elected Democratic Party DA in a deep blue county. It adds nothing, yet it also will fuel Trump's claims that it's all become a mad political feeding frenzy. Worse, the DA's case has become a political embarrassment for her party.
for her office and for the Democratic Party. It'll only get worse as her excesses and ethical violations come to broader light and gain more public attention.
Don't get me wrong, Willis will charge Trump. She's too pot committed at this point to back out, and she only stands to benefit personally and politically by following through on her longstanding promise. But in the long run, an indictment by the Fulton County DA undermines the greater effort to bring Trump to accountability and damages our political and criminal justice systems alike. Thanks for listening, everyone. Stay safe and stay informed.
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