In America’s latest iteration of law vs. scofflaw, Fani Willis has brought the most consequential prosecution in US history. Her 41 count indictment against Donald Trump and 18 of his closest co-conspirators threads the infinitesimal needle between free political speech and fraud, sewing Trump’s falsehoods into a cloak of criminal enterprise beyond the protection of the First Amendment.
The 1st A Protects Lying Politicians, But Georgia Law Doesn’t
Trump’s incessant drumbeat about a stolen 2020 election, repulsive to voters who value fact over fiction, is legally challenging to parse: under the First Amendment, politicians have the right to lie to the American public.
Trump can claim he is Jesus, the earth is flat, and that a chlorine enema will cure cancer, and there’s little the courts can do. Since 1943, the Supreme Court has protected political speech - even demonstrably false and ridiculous political speech - as the heart of the First Amendment, because, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion…”
In deference to this reality, Jack Smith’s indictment largely avoided Trump’s political rallies, and skipped incitement of the J6 capital violence entirely. Ms. Willis was not so constrained. She relied on Georgia Code Section 16-10-20, which makes it a crime to lie to any state, city or local government official in Georgia regarding any matter within their jurisdiction. It means Trump, free to lie ad nauseam at rallies, broke the law when he lied to Georgia officials to try to change the outcome of the 2020 election.
‘It’s Tough to Own Any of This When It’s All Just Conspiracy Shit Beamed Down From the Mothership.’
The Georgia indictment cites 162 separate acts by Trump and his co-conspirators, including false statements, impersonating a public officer, and forgery, and weaves them into criminal racketeering under Georgia’s RICO statute.
Trump’s “overt acts in furtherance of the conspiracy” to overturn the presidential vote in Georgia began on November 4, 2020, when Trump made a nationally televised speech falsely declaring victory. That lie quickly metastasized into varied iterations, including a pressure campaign on state and local officials to violate their oaths of office; transmitting false elector votes and forged elector certificates; falsely accusing workers of ballot stuffing; sending a preacher to intimidate an election worker into falsely confessing to election crimes she did not commit; and Trump’s pressure on Georgia’s Republican Secretary of State, to “find” nearly 12,000 non-existent votes. The indictment also identifies officials who stood up to Trump, recognized he was asking them to break the law, and refused.
Trying to explain how Trump’s stolen election claims resulted in massive court losses (61 cases), despite such extreme efforts, one Trump advisor commented, “It’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.”
The Sweet Poetry of Watching a Woman Take Down a Misogynist
Trump, who bragged in 2005 about assaulting women’s genitalia - which he dismissed as fake news - was found guilty of same in 2023 by a jury of his peers. Aside from his vitriolic attacks on female professionals, he likes to brag that he personally “killed Roe v. Wade.” He campaigned on eliminating the constitutional right to an abortion, and his justices Gorsuch, Coney-Barret and Kavanaugh, have tilted a political court to the far right, injuring women more than any other demographic in the process.
As red states are now free to force pregnancy and birth on half the population, women have lost medical agency over their own bodies, even when their own lives are at risk. How gratifying it is, then, to see Trump taken down by a woman, as there is no federal pardon for state crimes.
Republicans have abandoned the rule of law, preferring authoritarianism over the loss of power, which makes it all the more satisfying to watch Willis rein them in. Excuse me while I swoon, but Fani Willis is no pushover, and no bleeding heart. She has taken on violent gangs and is now prosecuting famous rapper Young Thug under the same RICO statute ensnaring Trump.
She leans conservative on criminal justice, and sought the death penalty for a man who murdered four women during an Atlanta shooting spree targeting Asians. She also prosecuted public school teachers in a high-profile test cheating scandal, a risky move that put the interests of children - who can’t vote - over the interests of teachers, who wield outsize political power over elected officials, including Willis. When criticized for the case, she told her detractors to “put it in my obituary.”
I think her obituary is writing itself: Fani v. Tawny, the woman from Georgia who took a criminal president down.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.