Smearing DA Fani Willis as Proof of One's ... Reasonableness?

Are the Fulton County criminal charges against Donald Trump redundant, mere "piling on" by an ambitious local prosecutor who should have left the heavy lifting to the feds?  It should not be surprising that some people on the right would have us believe as much.  For a different reason, it is sadly predictable that an unimaginative non-Trumpist would think herself clever for taking Trump's side -- reluctantly, of course, oh-so-so reluctantly.

Last week, I criticized a tendentious piece by Ruth Marcus, the Deputy Editorial Page Editor for The Washington Post, who offered a contrarian argument in her paper that the Georgia case was "one too many."  The short version of her argument was that "[a]t some point, it becomes unfair — yes, even to Trump — to go state by state."  Why?  Because the interests of every state are already supposedly being well represented by the federal case in DC, so bringing cases in all seven states where Trump's conspiracy operated would be burdensome -- not that there is in fact any evidence that other states beyond Georgia are doing this, but the mere possibility is apparently unfair "even to Trump."  And why is being burdensome even a concern here?

After publishing my piece, however, I became less and less forgiving and more and more angry about this sleazy smear at the end of the Marcus column: "Small point, but Monday’s spectacle of an after-hours indictment and late-night news conference didn’t exactly inspire confidence in the Willis office’s professionalism."  I only briefly mentioned that oh-by-the-way slam toward the end of my Thursday column, but it deserves a much harsher assessment.

In my column, I generally tried to dismiss Marcus's overall argument as merely obligatory filler from a pundit with nothing useful to say but who needed to offer a surprising hot take to be somehow interesting.  With respect to Marcus’s specific libel of Willis, I characterized it "charitably" as heckling, although I did add that "this particular example of otherwise forgettable blather is a bit worse than the usual run of such things."  Again, with time to think about it, this was much more than "a bit worse" than usual.

How much worse?  How low was that smear?  One way to measure its egregiousness is to look at who else is saying it.  And on Thursday evening (after Marcus's piece had run), Trump himself went on his pathetic social media platform and claimed that Willis is "a publicity & campaign finance seeking D.A."  That is not great company for a supposedly responsible pundit to be keeping, to say the least. 

More to the point, as one of my research assistants pointedly asked rhetorically, when did it become a bad thing for a person to perform her job in a way that might result in a promotion?  Some ambitious and soulless DAs railroad innocent people (after listening to provocateurs who, for example, foment hatred against the Central Park Five), which is obviously horrible, but the idea that a sitting DA might have thought about the career consequences of her decision is hardly damning.  But maybe someone else — perhaps the former prosecutor, mayor, and presidential candidate Rudy Giuliani, to choose one among zillions of examples — would disagree?

But Marcus went beyond saying that this was a careerist charging decision, describing the announcement as a "spectacle" (which it most definitely was not) held "after hours" (So what?) followed by a "late-night news conference" (as if this was not something about which reporters would have many immediate followup question) and thus undermined "confidence in the Willis office’s professionalism."   That is simply out of bounds -- for anyone but Trump, who has no bounds.

One reason to revisit this otherwise disposable Post op-ed, then, is to emphasize just how contemptible it was.  That is, it went from being merely boring to a distorted attack on a public servant.  Even so, I want to spend some time today discussing two substantive claims about Willis's decision.  Neither is sensible, but both are wrong in important ways.

As I noted in what I called an Addendum to my Thursday post later that evening, I initially wrote that piece essentially on Marcus's terms, which meant that I had not directly confronted the most obvious reason for a state prosecutor to charge Trump, even when a federal charge has also been filed: pardons.  Trump (along with many of the Republican candidates for President who are supposed to be his rivals) has made it clear that all federal charges and convictions will go away if he becomes President again.  State charges in Georgia, by contrast, cannot be pardoned before serving time.

Strangely, Chris Christie -- probably Trump's fiercest Republican critic at this point -- drew on his experience as a US Attorney to say in the last few minutes of an interview last week that no prosecutor should consider whether any charges can be pardoned away, saying: "That’s not our job."  He then emphasized the point merely by repeating the same four words.  (To return to a prior point, I know with all of my heart that Christie never, ever, ever thought during his time as a prosecutor about how his performance might help him run for higher office.)

Well, why the hell is it not your job?  Saying something with great confidence does not make it so.  Christie never offered any explanation at all, nor could he.  After all, if a prosecutor were to fail to take account of the realities around a potential indictment, she would not be doing her job.  If she knew, for example, that her own charges would surely be nullified after a long and expensive trial, she would be right to think long and hard about whether any symbolic or "public messaging" effect of a conviction justifies the diversion of extensive prosecutorial resources.  That is very much her job.

And this conclusion gains even more support from the second substantive claim favoring non-prosecution, which is Marcus's reliance on the idea that prosecutions should only go forward if any interests of the state will otherwise be “demonstrably unvindicated.”  Applying federal standards by analogy to the state level, Marcus argued that Willis should have stepped aside for Jack Smith's team, because they are already pursuing a case based on Trump's attempted coup, relying in part on some of the Georgia-based facts.  So, the argument continues, if Trump is going to be tried federally for what he did in Georgia, Georgia should be satisfied.

Again, however, why should a prosecutor look only at part of the picture?  It seems not only reasonable but essential to ask: "Will my state's interests be vindicated by a prosecution that the defendant could soon have the power to nullify -- especially when prosecution by my office cannot be nullified in that way?"  Although Christie is enjoying a bit of reputational rehab these days by being critical of Trump, his underlying personality comes through in his blustering, self-important, conclusory assertions.  And honestly, it is impossible to take seriously the implication that Christie himself would have stayed in this particular lane, if he were faced with a choice that involved the possibility that the relevant crimes would never be punished.

Moreover, the idea that "both the DC and Atlanta prosecutions are all about the same thing" is simply fatuous.  The four felony charges by Smith's office in Washington are about conspiracies to obstruct the electoral process, to obstruct an official proceeding, and to disenfranchise voters, along with a non-conspiracy obstruction charge.  In Georgia, the 13 felony counts against Trump include a RICO conspiracy (which is much broader than anything Smith charged, in part because Smith's case was apparently stripped down for the sake of a speedy trial).  Notably, the infamous "find 11,780 votes" phone call to Georgia Secretary of State Brad Raffensperger was one factual predicate of one of the charges, but that is about it.

Some of the Georgia counts against Trump involve his efforts to pressure not just Raffensperger but the Georgia House Speaker, while others detail the various state crimes that were violated in the forgeries and false statements involved in trying to replace Georgia's Biden electors with fake Trump electors.  Again, at a high enough level of generality (the same level of generality at which, say, "walking into a bank is not a crime" becomes a defense to the charge of having "cased" a bank in furtherance of a robbery), the DC and GA charges are about "the same thing," that is, Trump's efforts to subvert democracy.  But that in no way means that Georgia's state interests will be vindicated by stepping aside and letting Smith's deliberately pared down charges stand in for everything.

Even one of Marcus's colleagues, NeverTrumper Jennifer Rubin, quickly refuted Marcus's sleight of hand (not mentioning her by name).  Whereas "Smith’s indictment portrays Trump as opportunistically taking advantage of the angry mob," Rubin notes that "Willis puts the question of Trump’s responsibility for mob violence front and center," focusing in particular on Trump's repeated slander of poll worker Ruby Freeman, putting her at grave risk of violent retribution by Trump's rabid supporters.

Rubin summarizes the point well: "Without the Georgia case and without Trump identified as the head of the alleged criminal enterprise, there would be no justice for those victims, no accounting for the use of mob violence to corrupt the democratic process."  Similarly, New York Times columnist David Firestone wrote that "thanks to Ms. Willis, Ms. Freeman's story will reach a jury and the judgment of history, and the record will show precisely who inflicted the damage to her and to the country."

I suppose that one could say that a conviction of Trump on the federal charges (if he were not later pardoned) would be "punishment enough," but that is not how criminal law works, at least at the charging stage.  Georgia (like every state) has a criminal code that only partially overlaps with the federal one.  Each state has the latitude to decide when its laws have been so flagrantly violated as to demand the extraordinary public cost of prosecuting the offenders.  That there is some thematic and factual overlap in a scheme this large is hardly surprising, but it does not make the Georgia prosecution superfluous.

To return to the smoldering reason for my writing this column, however, I want to emphasize that this is not merely an argument about prosecutorial discretion.  Marcus's column went well over the line, defaming a public prosecutor by insinuating that she was a camera hound whose ambition had pushed her into abusing her power.  Nothing could be further from the truth, and asserting as much without basis or conscience is a serious disservice not only to Ms Willis but to justice itself.