Georgia judge teaches this vital lesson about legal system and Trump, Biden

A judge in Georgia has thrown out, at least for the time being, six of the 41 counts in the state RICO indictment that Fulton County district attorney Fani Willis filed against former president Donald Trump and 18 others.

In his 9-page ruling, Judge Scott McAfee dismissed six charges, which allege that Trump, Rudy Giuliani, Mark Meadows, and others solicited state officials to violate the terms of their oaths of office. The ruling does not disturb the remaining 35 counts, including the RICO charge. (RICO refers to the state’s Racketeer Influenced and Corrupt Organizations act, an analogue of the federal RICO statute.)

In connection with the six charges at issue, the indictment alleges, in very general terms, that the defendants solicited Georgia legislators and/or election officials (mainly, the secretary of state) to do the following:

* Unlawfully appoint presidential electors (counts 2, 5, 6 and 23);

* Unlawfully influence the certified election returns (count 28); and

* Unlawfully decertify the election (count 38).

Judge McAfee ruled that the indictment is defective on these charges because it does not specify what term of the oath of office the state officials in question were being asked to violate. 

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The judge reasoned that the constitutions of Georgia and the United States, which state officials swear to uphold, contain numerous clauses that impose myriad responsibilities on office holders. In the above described counts, McAfee concluded, the indictment is insufficient because it does not spell out which of these responsibilities were implicated by the defendants’ alleged solicitations.

In my view, the solicitation counts are among the most pernicious in Willis’s indictment. Americans have a constitutional right to petition government. As long as they are not doing so by bribery or extortion, they are allowed to ask legislators and executive officials to use their powers in ways that would be uncontroversial – and even potentially unlawful.

An example: Many people have asked President Biden to cancel their student loans. Last June, the Supreme Court held that Biden lacked the power to do that. 

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The Court’s interpretation of the law was entirely correct, and the case demonstrates how our system is supposed to work: If people are harmed because a government official has done something outside his authority, and thus in violation of his oath of office (here, Biden’s oath to execute the laws faithfully), the courts should rule that this action is wrong, which forces the official to stop doing it.

But it has never been the law that the people who encourage a public official to take controversial or even lawless action are subjected to felony prosecution for solicitation. Such a practice would defeat our constitutional right to petition the government for redress of grievances. There is no law that says we may only ask for things that are legal under current law. Indeed, we frequently ask our government to change the laws.

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In point of fact, Georgia, like every state, has legal processes by which the results of elections may be challenged. It is the right of Americans to make use of those laws. Obviously, if one commits a crime in doing that – e.g., if a person bribes or extorts a public official, or makes intentionally false statements in sworn testimony – it’s appropriate to prosecute those crimes. But it is not a crime to ask the state officials to question election results.

Finally, the charges that McAfee dismissed are not necessarily out of the case. Judge McAfee said that prosecutors could refile (or "supersede") the indictment, adding more specificity about exactly what duties of office were implicated – i.e., how the performance of those particular duties is reflected by the terms of the oath of office that the officials take.

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Judge McAfee is currently considering a defense motion to disqualify District Attorney Willis and Special Prosecutor Nathan Wade from further participation in the case. They have acknowledged having an affair. The disqualification issue involves when the affair began – i.e., whether Willis was already romantically involved with the married Wade when she hired him, paid him a salary that was extraordinarily high by Fulton County standards, then shared in the benefits of that salary by (among other things) taking luxury vacations with him, and later lied about it in court proceedings.

A decision on disqualification could come by the end of this week. Judge McAfee did not allude to the disqualification controversy in Wednesday’s ruling on the dismissal of various charges. 

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