(MSNBC/Screengrab via YouTube)
Below is my Hill column on the release of the Georgia Special Purpose Grand Jury’s final report. The recommendation to bring comprehensive charges against 39 people, including current and former senators, only increases fears of political prosecutions. For many of us, the inclusion of figures like the senators reflects a rogue grand jury. However, Rep. Adam Schiff (D., Cal.) insisted that Sen. Lindsey Graham was “lucky” not to be charged. According to Schiff, Graham calling Georgia officials about counting or canceling votes was enough to warrant criminal charges. Since Graham could be impeached with Trump, Schiff would also likely assume that he is no longer eligible to run for office under the 14th Amendment, as explained below. It is the “why not” approach to criminal and constitutional law.
Here is my column:
With the release of the Georgia grand jury’s special final report, the nation finally got to see what foreman Emily Kohrs giggled about in interviews last February.
Call it the “Why Not?” report.
When Kohrs was asked at the time if there were any recommended charges, she chuckled and said, “Can you imagine doing this for eight months and not coming out with a whole list of recommended charges?” It’s not a short list. It is not.'”
In addition to nodding at an expected indictment of Trump, she added, “There might be some names on this list that you didn’t expect.” Why not?
The final product did not disappoint. Members recommended 39 people for prosecution, including Senator. Lindsey Graham (RS.C.) and former Sen. Kelly Loeffler (R-Ga.) and David Perdue (R-Ga.). These included lawyers who advocated for a recount or an investigation into alleged voter fraud.
While the report specifically states that the Fulton County District Attorney’s Office did not compile the list, it did Fani Willis that presented the law, evidence and potential targets to the special grand jury. During this process, these members concluded that politicians who expressed support for the former president and his allegations could be prosecuted for doing so.
The news that Willis had not charged Graham and others angered many on the left. Liberal websites have been flooded with comments like “I want all trailblazers charged as traitors to our country, tried and given long prison sentences” and questions about why the list didn’t include Senators Grassley, Cruz, Lee and “147 current and former members of the… House, to name a few.”
The disappointment of the special grand jury members and commentators is understandable. Reading the charges against the 19 defendants, it is surprising that all of the other 20 were dropped. While the indictment contains serious allegations against some individuals, Willis based the broad indictment on a broad extortion theory.
One possible reason Willis dropped some of these targets is that she knew that the charges against these senators would have been quickly and decisively rejected by the courts as criminalizing political speech.
However, the 160 individual acts detailed in Willis’ report include speeches and social media posts by Trump and others claiming evidence of widespread voter fraud.
I don’t agree with these claims, but many citizens had the same suspicions about the election. Many still do it.
Given the 160 acts cited by Willis, it is understandable why jurors believed that anyone who made these claims was committing a crime. Graham, for example, called Georgia Secretary of State Brad Raffensperger after the November 2020 election to ask about mail-in votes and whether groups of ballots could be rejected.
This call was ultimately not deemed worthy of prosecution. However, Willis launched her investigation based on Trump’s continued demands that Raffensperger investigate the vote count in two additional calls. Once again, I agreed then and now with Raffensperger’s rejection. The question, however, is whether such requests are evidence of a crime.
I have long criticized the Washington Post’s misrepresentation of the two calls in Georgia, which later issued a correction in its reporting. Despite recently issuing a stunningly contradictory statement about the veracity of its original claims, the transcript of the calls shows that Trump did not tell officials to simply add more than 11,000 votes.
I still don’t agree with his claims, but have maintained that Trump made a predictable argument in a settlement hearing that he only needed that number of votes and that a new recount or further investigation would find them.
My questioning of the use of the calls as evidence of a crime has caused confusion among many people. They insist that it is absurd to believe that Trump actually called for a continuation of the recount or investigation rather than calling for Raffensperger to commit fraud. But Raffensperger himself recently took the stand and confirmed that the call was a “settlement negotiation” about whether to conduct further recounts or investigations.
The question is when advocacy, investigations or negotiations become criminal acts. Willis’ first grand jury clearly believed that senators who called for recounts or Raffensperger’s resignation should go to prison. The comparison between their recommendations and the eventual indictment does not provide a clear answer as to how such acts are distinguishable as crimes.
The same lack of limiting principle is evident in the new theory advanced by various experts under the 14th Amendment, which bars Trump from voting on the grounds that he is “engaging in insurrection or rebellion” or “the enemies of which “provided help or comfort”. Aside from the tendentious claim that the January 6 riots were in fact an insurrection, they also claim that the provision is self-implementing and does not require a congressional vote for the secretaries of state to remove Trump from the next election year to be excluded.
Even if Trump has not been charged or even convicted of insurrection (or even incitement), these advocates believe he can be disqualified from the election because of his election claims, inflammatory rhetoric, and belated calls for supporters to leave the party Capitol. This is one of the most dangerous legal theories in decades.
This week, Arizona Secretary of State Adrian Fontes, a Democrat, aptly described the asserted right to disqualification as a “radical” measure that would “include every elected office in our government – state, local, federal, etc.” In fact, it has The Democrats demanded that not only Trump but also 120 Republicans in Congress be excluded from running.
As with the special grand jury in Georgia, the question is, “Why not?” If the standard is to “provide aid or comfort” to insurrectionists, then why not hundreds of other Republicans who challenged the certification on January 6th have supported, remove it from the ballot? And while we’re at it, why not disqualify any lawyer who helped file voter fraud lawsuits from running? They all provided help or comfort with their actions.
That argument could have barred Rep. Jamie Raskin (D-Md.) and other Democrats from voting for baselessly opposing Trump’s certification in 2016, as could leaders like Hillary Clinton, who continued to cast the election as ” “stolen”. for years. In 2016 there were also violent riots against Trump’s inauguration in Washington, which was due in no small part to this rhetoric. We can then have different candidates from both parties removed from the ballot in each state.
This “why not?” philosophy is part of our impulse buying policy, where little thought is given to the impact of actions beyond immediate revenge and gratification. It is a criminal and political system based on the dizzying philosophy of Emily Kohrs.
Jonathan Turley is the JB and Maurice C. Shapiro Professor of Public Interest Law at George Washington University Law School.