ATLANTA—There’s an old court-oriented saying, attributed to writer Carl Sandburg: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
Yelling like hell, in essence, is what the right-wing pro-Trump Republican majority in the Georgia legislature is doing to Fulton County (Atlanta) DA Fani Willis because she insists on investigating Donald Trump’s lies and his attempt to subvert Georgia’s electoral votes in 2020.
The facts—Trump lost—and the law—Georgia’s count was by-the-book and Trump’s try was anything but—are against the former Oval Office occupant and his acolytes. So they’re yelling like hell via legislation in the state Capitol in Atlanta.
Two legal experts, one of them the top White House ethics officer during the Obama administration, retort in a column that the lawmakers won’t get away in court with their persecution. And Philly’s DA, himself a Republican target for being “soft on crime,” puts the whole Republican anti-crime crusade in the context of the party’s wider attack on the U.S. Constitution.
For almost two years, Willis has been investigating Trump’s tries to overturn Democrat Joe Biden’s 11,379-vote Georgia victory. The climax of it was his infamous phone call to the state’s top elections official, Secretary of State Brad Raffensperger.
Then, the man who constantly shouted “Stop the steal!” about the 2020 presidential election, tried to steal Georgia’s votes by ordering fellow Republican Raffensperger to “Find me 11,380 votes,” giving Trump a Georgia victory. In the testy, hour-long call, Raffensperger refused.
With the aid of a special grand jury, Willis has quizzed a parade of witnesses about Trump’s try, notably Trump’s lawyer—and liar to state lawmakers—Rudy Giuliani. Willis is also investigating whether his lies are crimes.
Others, including Raffensperger, Sen. Lindsay Graham, R-S.C.—who also called the secretary and GOP Gov. Brian Kemp, who backed Raffensperger’s refusal to kowtow to Trump, have also been questioned.
In retribution, the Trumpite majority in the state legislature approved bills (HB231, SB92) for a permanent special commission to ride herd on the state’s DAs. The panel can recommend discipline or removal of a DA who “categorically refuses to prosecute any offense or offenses of which he or she is required by law to prosecute,” among other reasons. Once lawmakers agree on a final version, Kemp is expected to sign it.
Top politicos, including the governor and legislative leaders, would name panel members. The measure passed on party-line votes in both houses, except one State Senate Republican defected, voting “no.”
The measure’s lead sponsor, State Rep. Joseph Gullett, R-Dallas, protests that too many DAs, including in a county in his rural district, get away with not prosecuting various offenses, such as marijuana possession. They can also get away with violating the law themselves. In one case in a county he represents, said Gullett, the DA was accused of sexual harassment.
Impeachment is too slow a punishment and elections are often years away, Gullett protests. He wants something faster. Many, Willis included, don’t believe him.
Willis, who is Black, told the State Senate Judiciary Committee white Republican lawmakers are targeting Black and Hispanic Democratic prosecutors.
“This bill was never deemed necessary until a historic thing happened in 2020, and let’s just talk about it and tell the truth,” Willis said. “In 2020, we went from having five district attorneys that are minorities to 14 that are minorities.” Those DAs, including herself, work in counties with more than half of Georgia’s people.
Norman Eisen, the chief White House ethics officer in the Obama administration, and Fred Wertheimer, founder of Common Cause, argue the Georgia legislation is so vague the courts will toss it out.
“Not surprisingly, the likes of Lieut. Gov. Burt Jones, a leader of the Trump false elector effort in the 2020 election being investigated by Willis, enthusiastically supports the bill,” they wrote. “Kemp should refuse to sign it. But if the bill becomes law, the courts will have ample reason to throw it out.
“The Georgia House bill provides that prosecutors can be removed from office by the Prosecuting Attorneys Qualifications Commission for ‘willful misconduct’ or ‘conduct prejudicial to the administration of justice which brings the office into disrepute’–whatever that means.
“This vague language could encompass any controversial high-profile case,” like Trump’s. That’s “just one problem with the bill…The commission could even investigate District Attorneys merely for making charging decisions where a complainant alleges ‘it is likely’ the District Attorney” considered factors ‘unrelated to the duties of prosecution.’”
“Again, whatever that means,” the two say. Or race, Willis says.
The panel can also toss DAs for refusal “to prosecute any offense required by law to prosecute,” the two wrote. That led one Georgia DA to comment he’d have to prosecute someone for sodomy because that law is still on the state’s books, though it hasn’t been enforced in years.
“Thus, under the new legislation, a ‘plausible’ allegation made by allies of the former president that Willis is making a charging decision in the Trump case influenced by her political beliefs could be sufficient to initiate an all-encompassing investigation and disciplinary proceeding that could derail a prosecution of the former president, or in the most extreme case, even remove Willis,” Wertheimer and Eisen concluded.
Gullett’s bill, which Kemp is expected to sign, is also part of a larger attack on prosecutors whom state-level Republicans deem “soft on crime,” resurrecting a social issue from the 1990s. In a recall vote, that crusade ousted San Francisco’s progressive DA in favor of a hard-liner. The Los Angeles DA narrowly survived a recall.
Last year, Pennsylvania’s then-Republican House majority impeached Philadelphia’s DA, Larry Krasner. He sued them and won in the state’s highest court—but not before he put the case in a context that could easily fit Willis.
“One is the national context of the attacks on reform prosecutors around the country,” Krasner told the Associated Press when he sued. “The other one is a more generalized authoritarian attack in this country, an authoritarian effort to nullify elections and to erase votes, and frankly, to undermine the foundations of democracy.
“That is, of course, unnecessary when your team is winning. But they’re losing.”
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