Dear Reader,

If (and, really, when) Jack Smith charges Donald Trump for his effort to steal the 2020 election, Fani Willis should stand down.   

I know, I know. I can hear the objections: Why should Willis, the elected Democratic District Attorney for Fulton County, step aside? Doesn’t she have the right and 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, a decision by Willis to forgo a Georgia state-level Trump indictment is ultimately in the best interests of prosecutors (collectively) and of 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; 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 his effort to steal the 2020 election. Most but not all 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 national media.

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. Willis’s likely charges therefore will become duplicative and unnecessary. Why do we need two indictments – one federal and then another at 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? 

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 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 that’s constitutional, but the only way to challenge a self-pardon is if DOJ brings a new charge and litigates the issue – which won’t happen in a Trump administration. So, the thinking goes, we need state charges because a hypothetical Trump 47 cannot pardon state crimes. But let’s be real here. If Trump does re-take the White House, there’s absolutely no way he will be tried criminally on state charges while he is the sitting president. So what are we 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. 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 then, true or not, that undermines confidence in our justice system. And if you’re not into high-falutin’ 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 isn’t an opinion. This is a fact. Let’s run it down.

Willis has already been kicked off a piece of her case because of a flagrant political conflict of interest. During her Trump investigation, 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 deferential to Willis, excoriated her, asking on the record “What were you thinking?” while noting that her conduct created “horrible optics” and was “problematic.” 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 ridiculing Graham – it depicts Willis, sitting coolly in a boat, hooking a fat fish on a line, with the caption, “I know you’ll do the right thing for the swamp, Lindsey” – and used it to solicit donations to her political campaign. This is simply unacceptable. If you happen to love Willis and to despise Graham, just imagine for a moment if an elected Republican DA in a deep-red county subpoenaed Senator Elizabeth Warren, and then gleefully used that subpoena to raise campaign cash. This was no opportunistic one-off, by the way; Willis also teamed up with a Democratic 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 has given nearly forty interviews to over a dozen media outlets. The supervising judge noted disapprovingly at one point that she is “on national media almost nightly talking about the investigation.” 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 also has done a media tour of his own, ahem – has made improper public comments about witnesses who invoked the Fifth Amendment. At one point, he idiotically responded to witnesses’ invocation of the Fifth Amendment by asking, “But if they did nothing wrong, why aren’t they talking to the grand jury?” (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 did 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 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, 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.

Stay Informed,

Elie

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