(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. This is the second in a series of excerpts.)
The first “illegal” act listed in Fulton County District Attorney Fani Willis’ indictment of former President Donald Trump) is for making a “nationally televised speech falsely declaring victory in the 2020 presidential election.” She makes similar ridiculous claims against other defendants, such as (Rudy) Giuliani, for example, because he “appeared at a press conference at the Republican National Committee Headquarters” making similar “false statements concerning fraud” in the 2020 election.
Willis even laughably lists as part of the unlawful conspiracy many public tweets by Trump, such as one on Dec. 3, 2020, and another on Dec. 30, urging the public to watch the live coverage of the Georgia legislature’s hearings on the 2020 election. Or another tweet on Dec. 30 thanking the Georgia legislature “for today’s revealing meeting!” that Trump said uncovered “Massive VOTER FRAUD.”
Under that bizarre notion, would the legislators who participated in those hearings, listened attentively and considered the allegations that had been raised be unindicted co-conspirators? That is how nutty Willis’ claims are— claims that are a direct attack on political speech.
Willis should have received a failing grade in constitutional law in law school since Trump’s speech and all of the other public and private statements made by Giuliani and the other political targets of her indictment— sorry, I mean defendants— were fully within their rights under the First Amendment to engage in “freedom of speech” and voice their complaints, concerns and grievances about the election— even if those turned out to be wrong.
Even special counsel Jack Smith acknowledged in the federal indictment that was returned a couple of weeks ago that “[t]he Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
Apparently, Willis doesn’t agree.
If It Was Illegal, Why Wasn’t Abrams Charged?
Whether or not Trump or Giuliani or anyone else was right or wrong about what happened in that election is irrelevant. They had every right to make that claim then, and every right to make that claim today, the same way that Democrat Stacey Abrams had every right to make the identical claim about her two runs for governor in Georgia.
She was clearly wrong, and Republican Brian Kemp is the validly elected governor of the state. But the fact that she and her supporters and allies are wrong doesn’t make them part of some grand criminal conspiracy to overturn an election.
But then, Abrams is a Democrat like Willis, so I am sure the thought of targeting Abrams with similar charges never occurred to Willis.
Texting for Phone Numbers Illegal? Seriously?
That included the supposedly illegal action of Meadows, listed as Act 8, of texting a message to Rep. Scott Perry, R-Pa., asking him for “the number for the speaker and the leader of PA Legislature” because “POTUS wants to chat with them.”
No, really: That is listed as a criminal violation of the law!
Keep in mind that the First Amendment’s free speech provision protects the right of Trump, Meadows Giuliani, and others to speak to state legislators about any subject and any claims— even if those claims, for example, turn out not to be true.
But another portion of the First Amendment protects their actions as well.
An often-overlooked part of the First Amendment is the right of all Americans to “petition the Government for a redress of grievances.” Trump certainly had a grievance: He believed (and still believes) the election was stolen from him because illegal votes were counted and the votes of some legal voters were not. Trying to persuade state officials to correct that is fully within that protected right under the First Amendment.
Moreover, to the extent that Willis is trying to indict Trump for such actions while he was president, he has a very strong argument that any actions he took as president after November 2020 and before Jan. 20, 2021, including with state and local legislators and officials, were within the ambit of his official actions as president, and presidential immunity applies.
Appointing alternate presidential electors is legal
Whether those actions by the president and executive branch officials questioning the election outcome in several states or the process of the electoral vote count in Congress were misguided or not is irrelevant and not subject to criminal indictment by a politically motivated district attorney who is acting far outside her legal authority and jurisdiction.
The Fulton County indictment also suffers from the same defect that affects the federal indictment by special counsel Smith.
Willis claims that it was “unlawful” for Trump and other defendants to try to persuade state legislators in states such as Pennsylvania, Nevada, and Arizona to “appoint presidential electors” that would vote for Trump. She targets David Shafer, a former state senator and the former chairman of the Georgia Republican Party, for the same reason; namely, setting up an alternative slate of electors to be utilized if the Trump campaign was successful in its legal fight over the outcome of the election.
Willis is just plain wrong.
As I explained in my analysis of the federal indictment:
But the idea of alternative electors isn’t new and has happened in prior presidential elections without anyone claiming they violated federal criminal law, including the 1876 contest between Samuel Tilden, a Democrat, and Rutherford B. Hayes, a Republican, when Oregon, South Carolina, Florida, and Louisiana sent two conflicting slates of electoral votes to Congress.
It happened again in 1960, when the alternative votes of John Kennedy electors from Hawaii were counted instead of the votes of the slate of Richard Nixon electors that was originally certified by the governor.
Contingent Electors Illegal? Seriously?
Moreover, under § 21-2-172 of the Georgia Code, the authority to choose electors is given to the “state party or body chairperson of such political party,” which means that Shafer, when he was the chairman of the Georgia GOP, was acting in compliance with state law in selecting a group of contingent electors as a backup in case any of the election contests were successful either in court or with the state legislature.
The indictment makes no mention of this statute, which Willis conveniently ignores.
All of these charges about the contingent electors are especially dangerous. Party activists should be encouraged to participate in the hurly-burly of the political process without having to worry about the criminal law being weaponized against them.
