More Good News for Trump in Fani Willis’ Case Against Him
Hans von Spakovsky / Cully Stimson /
The second attempted assassination of Donald Trump over the weekend came just after the dismissal by a Georgia judge of more lawfare charges against the former president and other defendants in Fulton County District Attorney Fani Willis’ partisan prosecution.
But on Friday, two days before Sunday’s second shocking attempt to kill Trump, another dismissal occurred. This time, the Prosecuting Attorneys Council of Georgia threw out charges Willis wanted to file against the state’s lieutenant governor over the same actions that formed the basis of her prosecution of other so-called fake electors favoring Trump.
This second dismissal, by a separate, independent prosecutor, demonstrates why Willis’ remaining charges against the other alternate, contingent electors and their lawyers should be thrown out of court.
The issue of whether Willis may continue her prosecution of any of the defendants is currently before the Georgia Court of Appeals, which set oral arguments for Dec. 5, a month after the presidential election.
The defendants appealed the decision of Fulton County Superior Court Judge Scott McAfee regarding their misconduct claim against Willis and her lover, Nathan Wade, whom she hired as special prosecutor against Trump.
McAfee ruled that the prosecution could continue as long as either Willis or Wade removed themselves from the case. Wade then bowed out, but the defendants are arguing that both of them should have been thrown off the case.
On Sept. 12, McAfee issued an order granting a motion to dismiss three of the remaining charges against Trump and other defendants in the Georgia case. The judge’s dismissal of two charges against Trump and one against other defendants comes on top of his ruling in March dismissing six other counts, including three against Trump. This leaves eight of the original 13 charges against Trump.
Notice a pattern here? Drip, drip, drip—drop, drop, drop.
The basis of McAfee’s latest order is the supremacy clause of the U.S. Constitution.
Article VI, Clause 2 provides that the “Constitution, and the Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In other words, the federal Constitution and federal laws always override state constitutions and state law. Not only has that principle been established in the courts, but we also fought the Civil War to uphold it.
McAfee applied the supremacy clause and an 1890 Supreme Court decision, In re Loney, to three charges in Willis’ indictment—counts 14, 15, and 27. All three of these counts, two of which named Trump among other defendants, accused them of violating Georgia law by filing false documents in a federal court case, Trump v. Kemp, that the Trump campaign filed contesting the outcome of the 2020 presidential election in Georgia.
Willis’ original indictment even claimed a violation of state law was committed by the filing of the “Verified Complaint for Emergency Injunctive and Declaratory Relief” in federal court in Atlanta.
But in his 22-page opinion, McAfee points to the Loney decision, in which the Supreme Court held that “the power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had.”
Willis, an elected county prosecutor, was trying to prosecute Trump and the other defendants for actions taking place in a federal court, over which she has no legal authority whatsoever. If the federal court believes some type of fraudulent activity took place, it’s up to the court to police (or for federal prosecutors to prosecute) it, not some local prosecutor.
McAfee makes a profound observation—that the “underlying policy endorsed by the [Supreme] Court [in Loney] is to prevent a state’s prosecution of an individual for perjury in a federal tribunal where such a prosecution was instigated by ‘local passion or prejudice.’”
Local passion or prejudice! Sounds like the Supreme Court was talking directly about Willis some 134 years ago. Oh, and by the way, that 1890 case involved locals in Virginia going after a witness in a contested congressional election. Sound familiar?
McAfee’s decision is good news for Trump and other defendants such as lawyer John Eastman. But when one looks at the other dismissal that occurred last week, it’s not hard to imagine that a Georgia court also might dismiss the remaining charges in Willis’ indictment of Trump and the others.
This is particularly so when one takes into account the presidential immunity decision rendered recently by the Supreme Court in Trump v. U.S and the First Amendment problems with many of Willis’ charges.
Burt Jones, a former state senator who has been Georgia’s lieutenant governor since last year, was one of Willis’ targets because he was one of the alternate, contingent electors selected for Trump. The votes of those electors would be in place if a court or the Legislature agreed with Trump that the presidential election had been wrongly decided in Georgia.
But Willis was recused because of her ethically dubious conduct in targeting Jones while at the same time helping his Democrat opponent in the lieutenant governor’s race.
After her recusal, the matter was referred to the Prosecuting Attorneys Council of Georgia to decide whether Jones, a Republican, should be investigated and prosecuted for his involvement in “the election challenges surrounding the General Election in November 2020”—i.e., the same “election challenges” for which Willis is prosecuting Trump and the others.
Peter Skandalakis, the state council’s executive director, issued his decision Friday after an in-depth review of all of the evidence presented to the grand jury, Willis’ “extensive investigative file,” interviews of Jones, and all of Jones’ relevant text messages.
Skandalakis’ conclusion? No further action should be taken because there wasn’t probable cause to support any charges, particularly because there was no evidence of “criminal intent, which is an essential element of committing any crime.”
Jones was “acting in reliance on the advice of attorneys and legal scholars,” including when “he served as an alternate elector,” Skandalakis found.
And what were those alternate, contingent electors told?
According to Skandalakis: “Prior to the vote, the electors were advised that their votes were needed to preserve a legal remedy for Trump should the pending lawsuit in Georgia be successful.”
In other words, contrary to Willis’ indictment of Trump’s codefendants and the biased claims constantly being made about what happened in Georgia, the alternate electors were there as a contingency. They were in place in case of a favorable decision by a court or the state Legislature, and they made their intention and purpose crystal clear at the time.
There was no intent to defraud anyone and, therefore, no criminal violation of the law.
Skandalakis wrote that his conclusion about Jones also relies on the fact that “attorneys and legal scholars argued state legislators had the duty to send their own slate of electors to Congress if the legislature determined the election laws were not followed or if there was evidence of fraud during the voting process.”
The fact that Trump and the alternative, contingent electors were “acting in reliance on the advice” of attorneys didn’t stop Willis from seeking a grand jury indictment.
The district attorney even indicted the lawyers for advising Trump and doing what they are professionally obligated to do—vigorously represent their clients’ interests.
Unfortunately, Fani Willis is not Peter Skandalakis.
Skandalakis also issued a stern admonition that not only is being ignored by Willis, but by bar associations and attorneys general who are going after contingent electors in other states and the lawyers who represented them and Trump in contesting the 2020 election results:
While the advice [that a client relies on] may eventually be judged to be incorrect, Senator Jones, like any other citizen, should not be punished for relying upon the guidance of counsel. … It is my experience and belief that we should encourage someone to seek the advice of a lawyer when faced with an uncertain legal issue. Potentially punishing someone for exercising that right is contrary to our system of justice.
This commentary was modified within an hour of publication to correct the name of the Loney case and the date of oral arguments on Willis’ continued participation in the case.