NRPLUS MEMBER ARTICLE F ani Willis has a case. It’s just not the case she brought. In this two-part series, I’ll first posit why the indictment the Fulton County district attorney has filed in Georgia state court is ill-conceived. Then, I’ll outline the case she could properly have brought — addressing how it should have been structured, what counts seem viable, and what charges are constitutionally objectionable or otherwise wanting. Let’s proceed with part one.

It would be more accurate to say Willis has a series of cases, more modest individually and collectively than the agitprop that passes for her indictment. That is because as the district attorney of Fulton County, Ga., Willis is a state prosecutor. Because the states, not the federal government, are principally responsible for conducting elections, Willis has at her disposal an array of penal laws specifically designed to promote election integrity. This gives her an advantage over Biden Justice Department special counsel Jack Smith, who has had to stretch such federal-law concepts as fraud and obstruction, which were not enacted with elections in mind, and civil-rights protection, in which Congress endeavored to protect the exercise of the franchise, not criminalize post facto schemes to undo the popular vote by political and judicial means rather than violence.

Alas, Willis is an elected partisan Democrat. Instead of competently drawn charges, narrowly tailored to address state-law offenses, Willis has produced the indictment version of the Democratic-dominated House January 6 Committee’s hyperbolic depiction of Trump as a criminal mastermind. In her rambling 60-page racketeering conspiracy charge, the Donald is transmogrified into the Don, a shrewd political-mafia boss playing multidimensional chess, choreographing the diverse plots of compartmented crews.

That’s really not how it happened. Humiliated by losing to the feckless Joe Biden, Trump refused to accept his fate and engaged, with a circle of daft advisers, in sundry half-baked schemes to reverse the election result. Essentially, the schemers exaggerated voting irregularities (magnified by Covid-driven voting accommodations) as if they’d amounted to massive, outcome-determinative fraud. They filed dozens of lawsuits premised on this illusion of fraud, which collapsed due to the dearth of concrete evidence. And they tried to arm-twist majority-Republican state legislatures, Republican state election officials and governors, and even Trump’s own vice president and Justice Department.

None of this mendacious pressure had the slightest chance of success in swaying the Republicans on whom it was applied. As a result, we never even got to the scene in the drama where Democrats would have mobilized to crush these inanities at the state and congressional levels. Contrary to the January 6 Committee’s telling, Trump’s machinations — though impeachable and disqualifying — posed no real threat to the constitutionally mandated ratification of Biden’s Electoral College majority and the consequent transition of power.

Unfortunately, it is impossible to remember Trump’s two-month “stop the steal” campaign except through the prism of the Capitol riot, which the former president undeniably stoked but kept short of criminally inciting. Nor is there evidence, despite nearly three years of investigation, that Trump conspired with groups or individuals who assaulted police and besieged the Capitol.

If there were such evidence, things would be easy for prosecutors. The First Amendment’s robust protection of political speech, association, the petitioning of government officials, and the pursuit of lawful remedies, would be beside the point if Trump had engaged in or willfully abetted violence. There is no First Amendment defense against federal crimes of insurrection, seditious conspiracy, forcible attacks on government facilities, and assaults on government officials and security personnel.

But the prosecutors — state and federal — do not have evidence that would establish violent crimes. Since they are mulishly determined to press ahead, they are left to do the big Capitol riot case without the riot. Put another way, they seek to prosecute Trump’s nonviolent political chicanery, most of which is constitutionally protected, because they are unable to make the case on which they have already convicted him in the court of public opinion — the January 6 “insurrection.”

Willis is an elected Democrat who seeks reelection next year, and her indictment is the progressive fever dream: the Trump-orchestrated insurrection with all the villains the Left loves to hate — Rudy Giuliani, Mark Meadows, John Eastman, Sidney Powell, Jeff Clark, et al. But because Willis, like Smith, lacks proof of violence and hence proof of an actual insurrection, she is left groping for a unifying crime that would tie them all to the same conspiracy.

That’s easy, Democrats insist: Trump et al. “conspired to steal the election.” Well, look high and low through the penal law of Georgia if you’d like, but you’ll find no such offense. Notice Democrats never refer to it as “stealing” when Stacey Abrams does it. No matter. The point is: It’s simply not a crime to try to overturn an election through nonviolent means of political and legal pressure. And even if you believe, as I do, that Trump is morally and politically responsible for the violence of January 6, that is not a valid justification for distorting criminal laws in order to convict him. The criminal-justice system is not in the cosmic-justice business. To the contrary, even the worst of the worst criminals are presumed innocent, and the law is geared to make the close calls go the defendant’s way

Willis tries to overcome this inconvenience by invoking RICO — Georgia’s version of the federal Racketeer Influenced and Corrupt Organizations Act. But RICO is unavailing because the supposed “criminal organization” she alleges in count one is a fiction. The 19 defendants named are not in any way an organization, much less a criminal one. More to the point, the charge falls woefully short of what RICO requires: an association in fact that poses a continuing threat to the public. Here, the loose, scattershot, fleeting union of Trump supporters was going to end by January 20, 2021, one way or another.

To reiterate, the innovation of RICO was to target not the crimes committed by such enterprises as a mafia “family” but rather the participation in an enterprise that seeks to sustain itself over time so it can continue generating money and power through criminal activity. Willis’s 19 defendants were not joined in such an enterprise. They had no interest in being part of a continuing venture. To the contrary, they shared the single, lawful objective to retain Donald Trump in office, even if it took dodgy lawsuits (though when pressed by judges, they usually folded rather than trying fraudulently to prove fraud) and political strong-arming (but not violence). They may have committed crimes in attempting to achieve their lawful objective, and Willis may properly prosecute those. But that doesn’t turn a lawful objective into a criminal conspiracy, much less a RICO conspiracy.

Now, the fact that Willis lacks a viable conspiracy charge that she can bring against all 19 defendants does not mean she has no viable charges. She may have several, although they should not have been brought as a single case. In the best light to her, she should have brought four cases — although one of those should probably be broken into separate cases, and one of them should be dismissed prior to trial as failing to state a crime.

In part two of this series, I’ll outline the case I believe Willis could properly have brought.