(Publisher’s note: These are excerpts of a column that originally appeared in The Daily Signal. The author is licensed to practice law in Georgia and is a former Fulton County election official. Tomorrow we’ll publish further excerpts.)
The attack on the First Amendment and the very structure of the American legal system by the Star Chamber of Fulton County District Attorney Fani Willis is a profound assault on our democratic republic and the rule of law. There’s no other way to characterize the politically partisan indictment of former President Donald Trump and 18 other defendants (along with 30 unindicted coconspirators) for legally questioning the legitimacy of the outcome of the 2020 election in Georgia.
Willis is trying to criminalize free speech and have a chilling effect on anyone in the future who might dare to question the results of an election.
Willis manufactured this egregious “case” with seeming unforgivable ignorance of the freedom to speak, to engage in political activity, and to petition the government for a redress of grievances that is protected by the First Amendment.
Lawyers as Co-Conspirators? Seriously?
By naming as alleged co-conspirators the lawyers who were representing Trump and providing him with advice and counsel in the legal actions that were in the state and before legislators during public hearings and in private conversations, Willis is also attacking the fundamental way that our justice system works, in which lawyers are tasked with vigorously pursuing the interests of their clients.
Under the crazy legal theories being pushed in her indictment, every lawyer in Georgia who represents a defendant and makes statements that turn out to be wrong or legal arguments that are ultimately rejected could be accused of conspiring with his or her client to commit a crime.
In other words, they could be charged with a crime for doing what the professional code of conduct tells the lawyer he is supposed to do; namely, represent the interests of his client to the best of his abilities.
The 98-page indictment contains 41 counts, all of which are centered around Georgia’s “RICO” statute— the Racketeer-Influenced and Corrupt Organizations Act— and it includes “co-conspirators,” among them Trump’s former chief of staff Mark Meadows; and Trump’s former lawyers, among them Rudy Giuliani.
This is a statute that was designed to go after mob operations and the kinds of criminal conspiracies run by dangerous drug cartels, not candidates contesting an election outcome.
Trump as Tony Soprano? Seriously?
But Willis apparently thinks that Donald Trump is the equivalent of Tony Soprano and the other defendants are his Cosa Nostra wiseguys. And why? Because, according to the indictment, they “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Donald Trump.”
How does RICO come into it? Willis claims that the “conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, elsewhere in the State of Georgia, and in other states,” including Arizona, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin, and the District of Columbia.
This indictment is the most outrageous, outlandish misuse of a RICO statute that I have ever seen, and it fails to establish a credible violation of the law.
And apparently, Willis thinks she not only has statewide jurisdiction in Georgia, but also has jurisdiction over acts that supposedly happened in six other states and the District of Columbia.
I am sure the attorneys general of those states will be surprised to learn that.
In order to justify her fantasy, Willis lists a series of actions that occurred from Nov. 4, 2020, to Sept. 15, 2022, which were supposedly overt acts in furtherance of the conspiracy. But Willis lists incident after incident (what the indictment terms “Acts”) of perfectly legal actions that not only don’t violate any laws, but are fully protected under the First Amendment.
Charges against Ray Smith ‘especially obnoxious’
The claims made against the lawyers in the case, such as Ray Smith (an outstanding, ethical, highly professional lawyer I’ve known for 30 years), are especially obnoxious and a blatant attack on the way our justice system operates. He supposedly engaged in a criminal violation of the law by presenting the claims of his client to state legislators at the legislative hearings investigating the election and by participating in efforts to provide a contingent, alternative slate of Trump electors that could be used by those legislators if they determined that the claims about the invalidity of the election were correct.
‘Competent Representation’ Wrong? Seriously?
Smith was doing exactly what lawyers are called on to do by the State Bar rules that govern Georgia lawyers (Rule 1.1 and 1.3); namely, to provide “competent representation” and to “act with reasonable diligence and promptness in representing a client.”
Willis is ignoring not only this professional rule, but also the warning in Rule 1.2 (b) that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” By attacking the lawyers who were representing Trump in court and before state officials, Willis is attacking the very essence of our adversarial legal system and the way it works in ensuring that individuals are able to obtain legal representation.
