The Dec. 19th decision by the Georgia Court of Appeals to remove Fulton County District Attorney Fani Willis from prosecuting President-elect Donald Trump and his co-defendants on anti-racketeering charges relating to the 2020 election should remind us that our legal system was designed by our founders to be an ethical process to seek justice, and not for twisting laws to seek political retribution. Our courts are supposed to be the arbiter of constitutional controversies and the protector of unalienable rights.
The courts have specific duties that are supposed to be separate from lawmaking and law execution – and politics. Prosecutors should obviously prosecute crimes in accordance with the law, but they should also be ethical while seeking justice. We as a nation have been missing that point all too often for far too long, to our great peril.
Let’s take a brief trip down memory lane to reflect on this.
It was back in 1987 when President Ronald Reagan’s U.S. Supreme Court nominee was demonized by opposition Democrats in a classic “litmus testing process.” Robert Bork was defeated, especially after savage and false political attacks by the late Sen. Edward Kennedy. Afterward, Bork lamented and properly warned of “the political seduction of the law.” Many Senate confirmations since then have been terrible public spectacles, especially the most recent spectacle that involved now-U.S. Supreme Court Justice Brett Kavanaugh.
Sadly, litmus testing of judicial nominee subjects the process to political issues rather than an examination of judicial temperament. And judicial activism disrupts this order by empowering & encouraging judges to legislate from the bench rather than to interpret what is required by the U.S. Constitution and the laws passed by the states and Congress.
Going down this memory lane brings us to understanding that when citizens no longer believe in the impartiality of district attorneys and judges and the legal processes they oversee, the carefully crafted checks and balances designed by our nation’s Founding Fathers are seriously eroded.
For example, who would have thought that just a decade ago some district attorneys like Willis would openly and specifically target someone, like a political opponent such as Trump, to put them in jail?
Just take the case of Lt. Gov. Burt Jones. After Willis had to be removed from prosecuting him for so-called 2020 presidential election interference for being an alternate presidential elector, the case went to an impartial prosecutor Pete Skandalakis of the state Prosecutors Council. He threw out all the charges saying:
Jones was following the advice of an attorney who addressed the GOP electors shortly before they voted. The attorney said the electors would be following a precedent set in Hawaii in the 1960 presidential election and that their actions would preserve former President Trump’s legal options in a pending lawsuit challenging the election results.
Skandalakis emphasized that Jones should not be punished for following the advice of counsel, saying:
“It is my experience and belief that we should encourage someone to seek the advice of a lawyer when faced with an uncertain legal issue. Potentially punishing someone for exercising that right is contrary to our system of justice.”
Bottom line: Jones was guilty of no crime!
Let’s turn now to lawfare.
During the first term of President Trump there came the now-proven-to-be-false Russian collusion narrative, Robert Mueller’s special counsel investigation and two impeachment efforts between 2019 and 2021.
By 2021, Trump was out of office but no matter—next came indictments from Willis in Georgia and then in New York City, the FBI’s unprecedented Mar-a-Lago raid, the Merrick Garland/Jack Smith targeting indictments– and coupled with all that the Biden-Harris attack messaging that Trump is somehow a threat to democracy. Yet the real threat is abusing the law to target political opponents, rather than having elections run their course.
By the way, it’s interesting to follow the debate that Willis has been trying to prosecute Trump and the other co-defendants for supposed Mafia-like “racketeering” actions to “interfere” with an election. Note that prominent Georgia Democrat and Republican attorneys maintain the DA has no legal authority whatsoever in this regard.
Bottom line: The debate over corrosive “lawfare” is worthy of sober reflection, and correction.
Phil Kent is the CEO and publisher of James Magazine Online.
