Well, it's that time again. Before the newest of Donald Trump's criminal indictments was even voted into being by a Georgia grand jury, the pundit columns explaining why the indictments were a bad idea were already being prewritten. The Washington Post's Ruth Marcus appears to have been one of the first off the starting line, not that it took much effort when everyone already has about six years of experience writing up similar appeals.
Marcus has, she says, "substantial misgivings" about whether the Georgia prosecution is "advisable," which is, sigh, fine. The whole point of punditry is that it's a profession in which you, an expert in nothing, use the biggest megaphone you can find to complain that the actual experts doing Things are doing it wrong wrong wrong. It is the professionalized version of the Loud Guy in Bar. The theater critic, but for real life.
We'll use the Marcus column as a stand-in for the next 100 columns to come, not because I've got any grudge against Marcus but because the sure-to-come David Brooks or Bret Stephens versions will be so bullshit-riddled that we'll want to chew our own arms off rather than read to paragraph three. Marcus says the new Georgia indictment is "sprawling" and "no-hold-barred," with co-conspirators ranging from the well known to the "obscure.” (The "obscure," just so we're clear, are the Republican men and women who signed their names to a document claiming themselves to be legitimate state electors despite that being quite obviously a fraud.) It'd be a hell of a thing if we started tossing felony court cases because the nation's prosecutors decided the criminals were simply too obscure to send to prison. Usually it's the obscure criminals who get the book thrown at them while the non-obscure criminals have the pundits wringing their hands in worry over the wisdom of indicting them at all. But:
And this is no modest, Georgia-focused set of charges by a local prosecutor; the indictment ranges far beyond Trump’s conduct in Georgia to sweep in his efforts to change the outcomes in six other states as well.
Right, because the criminal conspiracy included acts that took place in multiple states, which is why Trump was arraigned on federal charges just last week. If the indictment were to leave out all the bits that took place elsewhere, it wouldn't be a full picture of the crimes. That doesn't mean the Fulton County district attorney's office is attempting to prosecute crimes in other states from her perch in Georgia. It means the criminal conspiracy included acts in other states that either represent crimes against Georgia voters or are details necessary to describe the fuller scope of the conspiracy. And this is important, because we immediately get to the favorite punditry dodge of claiming "free speech" and presuming that criminal acts can't be criminal if they include saying things out loud. This will soon become one of the best metrics for determining which pundits know the first damn thing about what they're talking about.
Where Justice Department special counsel Jack Smith took pains to acknowledge Trump’s First Amendment rights and appeared to craft the charges to avoid butting up against free speech concerns, the Georgia indictment doesn’t tread so gingerly. The very first overt act it cites in furtherance of the alleged conspiracy is Trump’s speech declaring victory in the early morning hours following Election Day. Overt acts don’t have to constitute crimes in and of themselves, but using a candidate’s victory speech as evidence against him is one aggressive move.
No. No, no, no, no, no. Stop right there. Here, hang on, let's have somebody other than me say this so it doesn't look like I'm just browbeating here.
There you go, America, there's your 2-inch explanation. Like the getaway car driving legally on city roads, overt acts don't have to constitute crimes in and of themselves. Trump giving a "victory speech" when he was distinctly not victorious was in itself free speech, but it was also a pre-planned move to further a conspiracy to discredit the election's results in order to create public justification for altering the results. Trump and co-conspirators immediately attempted this by cajoling and threatening Georgia election officials.
There are a great many acts outlined in the "sprawling" indictment that of themselves aren't the least bit criminal. Trump and others are now facing racketeering charges because Georgia (and federal) prosecutors have a mountain of evidence to prove that each of those not-criminal acts were undertaken in order to further the criminal part of the plan.
If you go up to someone or a group of someones and say, "Please give me money," as long as you're wearing nice clothes and do not look homeless, it is not often considered a crime. If you say "please give me money" while inside a bank, pointing a loaded gun at a cashier's head, it is immediately a crime and your blurry face will be on FBI posters within a week. No armed robber ever declares they were engaging in free speech when they demanded their victim's money, because it's patently stupid and likely to result in the judge throwing their little wooden hammer at you.
Trump and his team cajoled Georgia elections officials into changing the vote totals by "finding" votes, or by un-"finding" them. When that didn’t work, they engaged in a multistate criminal scheme to produce fake, uncertified state electoral slates and hand them over to Congress with the claim that they were real.
To support that criminal scheme, co-conspirators fanned out across the country to make wild and fraudulent claims to state legislatures, to media figures, to state courts, and to a violence-seeking mob waiting in the Capitol's front yard on Jan. 6. There are likely hundreds and hundreds of instances of co-conspirators making false or loaded claims that were not of themselves criminal, but were intended in furtherance of their election-tampering crimes. A mere 100-page indictment couldn't contain even half of them.
From there Marcus correctly notes another feature of the Georgia case: There are no double jeopardy concerns here. The same act can constitute more than one crime—shoot towards a bank cashier during a robbery and you're going to be facing two felony charges, not one. In this case, Trump and his numerous fellow conspirators conspired specifically to deprive Georgia voters of their rights, both by threatening state officials and by later submitting a fraudulent electoral state the conspirators intended for Congress to use rather than the one the state itself certified and sent.
That means Trump and his team broke a whole bunch of specific Georgia laws at the same time as they broke different federal laws. This isn't even a case of the federal government stepping in only after a state botched or crookedly sabotaged its own prosecution of a crime.
So what's the problem?
Georgia has an important interest in ensuring that its elections are conducted fairly and that votes are accurately counted, but the primary interest at issue here is that of the United States. This was a federal election, after all.
So, what is gained by bringing state charges — and what are the downsides of doing so?
Well, what's gained is that "for months, if not years, it was not clear that federal prosecutors were pursuing a case against Trump" in the first place, Marcus then acknowledges. There has been widespread public (and pundit) concern that the federal government has been slow-walking its own case, that it's being sabotaged from within the department, and that the Department of Justice simply doesn't have the stomach to prosecute Trump or any of the politically connected conspirators who attempted an actual damn coup.
It isn't just the absurd sluggishness with which the Justice Department moved forward on this, literally the most important criminal case of the last half-century or more. There are no seditious conspiracy charges, for example, despite Justice nailing multiple militia members who helped further the coup with such charges. There's been no attempt to bar Trump from foreign travel, even as Justice admits they don't believe they have recovered all the classified documents Trump hid from them. Also despite the fact that a man facing charges that would have him die in prison owns his own personal transcontinental jet.
What we've got here, in fact, is the opposite case from what we see in nearly all crimes that involve both state and federal laws being broken. In this case, there's widespread suspicion that the federal government is whiffing the prosecution. When Marcus asks what "substantial Georgia interest" has been left "demonstrably unvindicated," up until just last week the answer would be all of them. Until last week, nearly three years after the conspiracy first began, there were still no federal charges facing Trump and his allies for attempting to erase Georgia's presidential vote.
What is gained by bringing state charges? A backup plan that may be very necessary if the congressional seditionists currently backing Trump's new presidential campaign succeed in sabotaging the federal case against him and his co-conspirators. What are the downsides? Opinion columns. And potential violence by Trump supporters, like the one who died in Provo, Utah, after sending threats to President Joe Biden and other Trump-declared enemies and then pointing a gun at law enforcement officers who came to investigate. And more opinion columns, including future ones fretting that the violence of pro-coup Trump supporters wouldn't be taking place if America would just roll over and accept that Trump attempting to seize control of the government wasn't worth the legal fuss.
We are currently in a country in which one of the two major political parties conspired to overturn a national election by promoting hoaxes declaring, with utterly fictitious and manufactured faux-evidence, that the election had been "rigged" against them. That party holds control of the House of Representatives. Its members have been unapologetic and aggressive in their attempts to thwart both investigation of the crimes and their prosecution, demanding that the Justice Department end the case, that it turn over the names of all the witnesses against Trump, that the department itself be defunded rather than allow the case to go forward, and that everyone involved in any of the investigations of Trump be impeached, fired, or imprisoned. And Trump, in the meantime, continues to further the conspiracy he is now facing prosecution for without apparent consequence.
It is not the slightest bit surprising that state prosecutors in Georgia or, in fact, in any of the 50 states would believe the federal government to be too compromised to pursue justice. Why should Georgia defer to a federal prosecution that could be 18 months away from being placed under the control of the criminals themselves?
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