Georgia’s indictment of Trump is a confirmation of states’ rights, a favorite cause of Republicans since Reagan
Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University
Mon, August 14, 2023
Fulton County Sheriff officers block off a street in front of the Fulton County Courthouse on August 14, 2023 in Atlanta, Georgia. Joe Raedle/Getty Images
For the past 50 years, Republican policymakers and judges have sought to bolster federalism in the United States. Since Ronald Reagan’s first inaugural address in 1981, Republicans have been calling for policymakers to rein in the federal government in favor of devolving more power to the states.
Contrary to what it sounds like, “federalism” does not mean a strong central government. Instead, it refers to a system of government in which the people may be regulated by both the federal and state governments.
Reagan succinctly expressed it in his 1981 inaugural speech: “It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people.”
All U.S. citizens are actually citizens of two separate governments: They are citizens of the United States as well as citizens of the state in which they live. And they are subject to two systems of law as a result.
The Framers valued federalism – and the division of power between different levels of government – as a bulwark against tyranny and a protector of liberty.
But this division of power has doubled the trouble for the leading Republican in the country: former president and likely GOP presidential nominee Donald Trump, who now stands indicted on 13 criminal counts by a Fulton County, Georgia, grand jury for “knowingly and willfully” joining “a conspiracy to unlawfully change the outcome of the election.” Eighteen others were also indicted on a variety of charges related to the attempt to overturn the election.
Fulton County District Attorney Fani Willis in an April 19, 2023, portrait in Atlanta. AP Photo/Brynn Anderson, File
Prosecutions by ‘separate sovereign governments’
With federalism come two sources of law – state and federal – which creates a complex web of regulations that can lead to criminal charges at both the state and federal levels, even for the same behavior.
While this may sound like a violation of the constitutional ban on double jeopardy, that constitutional protection only applies to repeated prosecutions by the same sovereign government. The state and federal governments are separate sovereign governments.
The federal government may criminalize behavior within the constraints imposed by the U.S. Constitution that limit federal power. Most federal crimes involve some form of interstate travel or transactions, for example. But the states’ criminal codes may often regulate the same behavior or additional behaviors with different standards and different penalties.
For example, when Timothy McVeigh blew up the federal building in Oklahoma City in 1995, he was subject to prosecution by both state and federal officials for violations of the laws of both governments.
McVeigh committed federal crimes, such as use of a weapon of mass destruction on federal property and the murder of federal law enforcement officers. The state of Oklahoma [could also have prosecuted him] for violating Oklahoma murder statutes, among other state criminal violations, although once McVeigh was convicted and sentenced to death in a federal trial, Oklahoma prosecutors did not ultimately seek to bring a case against him.
Donald Trump is now experiencing the full weight of a system of government in which criminal law is produced and enforced by law enforcement agencies and prosecutors across 50 states and by one powerful central government.
Fulton County Court Clerk Che Alexander arrives with indictments for Superior Court Judge Robert McBurney on August 14, 2023 in Atlanta, Georgia. Megan Varner/Getty Images
The ‘very essence’ of federalism
Trump’s activities in Georgia and New York may be prosecuted independently by state prosecutors – district attorneys and state attorneys general – under those states’ criminal codes.
At the same time, many of the facts implicated in the Georgia and New York cases could contribute to, or be relevant to, federal criminal prosecutions as well.
Prosecutions at both levels represent the very essence of federalism in action.
Usually in such circumstances, state and federal prosecutors must negotiate with one another about who will bring their prosecutions first, and how the state and federal trials will be managed and accommodated by each government.
But no matter what, neither set of officials has the power to deny the other the chance to prosecute a defendant who has violated the laws of their respective jurisdictions.
There is abundant irony in the fact that federalism – championed by Republicans and conservative judges for decades – now has come to haunt the leading Republican for the U.S. presidency.
And even more ironic is that even if he becomes president again, Donald Trump will not have the authority to pardon himself – if that is even constitutional – or anyone else for the violation of state crimes.
Presidential pardon authority extends to federal crimes alone.
This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts.
It was written by: Stefanie Lindquist, Arizona State University.
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Some Georgia Republicans get it: Fani Willis just did them a huge favor
Amanda Marcotte
Tue, August 15, 2023
Joe Raedle/Getty Images
Let's hope Georgia Republicans remember the manners their mamas taught them, because if Fulton County District Attorney Fani Willis succeeds in her mission of punishing Donald Trump, they owe her a big pile of thank-you cards. I recommend 11,780 cards, one for every vote that Trump demanded that Georgia Secretary State Brad Raffensperger "find" during their infamous phone conversation on Jan. 2, 2021. They should probably include some bouquets of flowers and perhaps a peach cobbler or two. As Republican leaders on the ground in Georgia are no doubt aware, if Trump doesn't pay for his crimes, they could very well find themselves once again being told by their party leader: Break the law for me, or lose your political career.
On Monday, the grand jury convened by Willis pushed late into the night before returning a startling, sweeping 98-page racketeering indictment that names Trump and 18 other felony defendants (as well as more than two dozen unindicted co-conspirators and "others not named"). Willis has outlined a large-scale conspiracy intended to keep Trump in power after losing the 2020 presidential election. The indictment names an all-star roster of well-known Trump confidants and advisers — including Rudy Giuliani, John Eastman, Mark Meadows, Jeff Clark, Jenna Ellis and Sidney Powell — as well as lower-level Georgia Republicans allegedly involved in the "fake elector" scheme or in breaching the voting systems in a rural county.
It's not just Democrats who seem to feel giddy about this. Some Georgia Republicans appear to be quietly celebrating the potential downfall of a man who seemed determined to rope all of them into a dangerous criminal conspiracy. After all, these are people, as the Washington Post reported Monday, who heard Donald Trump Jr. present them with a choice: Risk prison for his dad or face the destruction of their careers.
While major players in national Republican politics, including House Speaker Kevin McCarthy, have decided to die on the hill of defending Trump, many state Republican leaders in Georgia (and lots of other places) seem more interested to see Trump behind bars and out of their lives for good. Willis' indictments appear to rest heavily on the testimony of state and local Republicans, some of whom were seen going in and out of the Atlanta courtroom Monday. In front of a jury and the nation, this makes it a lot tougher for Trump and his supporters to sell the "partisan witch hunt" narrative. One of those GOP witnesses, former Lt. Gov. Geoff Duncan, seems especially clear-headed about the fact that Trump is a parasite on his party's hide, and will suck them dry if he's not forcibly removed.
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"As Republicans we need to take our medicine and realize the election wasn't rigged," Duncan told Atlanta Journal-Constitution reporter Greg Bluestein, after giving testimony before the grand jury Monday. "Donald Trump was the worst candidate ever, in the history of our party. Even worse than Herschel Walker. And now we are going to have to pivot from there."
Duncan's optimism that his party can "pivot" away from Trump and recover from the MAGA infection anytime soon may be overly optimistic. All he needs to do is look at the immense power that an insurrection-friendly member of Congress from his state, Marjorie Taylor Greene, has amassed in the GOP Congress. Republicans have turned against democracy not just because of Donald Trump, but because of their own growing awareness that right's political agenda is widely unpopular among most Americans.
We can all agree with Duncan, however, that it would be nice if Trump were too busy serving time to run for president.
During the coup, one quote from an anonymous Republican official became immediately infamous as a symptom for the party's failure to take Trump's fascist yearnings seriously: "What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change."
But it's the second part of the quote that came to mind for me during the coverage of these indictments: "He went golfing this weekend. It's not like he's plotting how to prevent Joe Biden from taking power on Jan. 20. He's tweeting about filing some lawsuits, those lawsuits will fail, then he'll tweet some more about how the election was stolen, and then he'll leave."
Yeah, that's not how it went, is it?
We've since learned how much Trump did to try to overturn the results of the election. The evidence that's been released paints a picture of a man singularly obsessed with leading this coup. He worked the phones relentlessly, pressuring state and local officials to break the law for him. He held multiple scheming meetings with his co-conspirators. He badgered Vice President Mike Pence on Christmas Day to steal the election for him. He falsified documents, including a notarized document appealing to Justice Clarence Thomas to halt the electoral vote count. Trump worked harder on his coup, it's fair to say, than he has ever done in either politics or business.
Details like this offer some insight into why Duncan and other Republicans are pinning their hopes on this indictment being the event that finally break the spell Trump holds over the GOP base. It's not just that a possible trial of Trump and the other defendants in Georgia would almost entirely feature Republican witnesses, undermining Trump's efforts to paint this as Democratic persecution. The high drama of the evening was also a reminder of one big difference between Georgia's state courts and the federal courts in which special counsel Jack Smith must work: Cameras. Federal courts hate 'em, but Georgia has them.
Yes, the early part of the evening was a bit underwhelming as Judge Robert McBurney received the indictment, flipped through its pages and then joke to reporters in the room, "Was it all that you hoped it would be?" But when Willis' 98-page whopper finally dropped shortly after 11 p.m., it was worth the wait. And there were the cameras, which weren't present for any of the federal court proceedings. This trial, if it actually goes forward at some point in our lifetimes, will likely be on live TV.
Trump has benefited from the camera-free atmosphere of his previous indictments, including the one he faced in New York, which tends not to permit cameras in the courtroom. We got just one set of photos from that arraignment, showing Trump's grumpy-defendant face, and that was it in terms of evocative imagery. That essentially creates an information vacuum Trump and his propagandists can fill with lies.
As we saw in the House Jan. 6 committee hearings last summer, the wiggle-and-lie games that Trump and his apologists play gets a lot more difficult when they're faced with televised testimony and evidence. Trump's dramatic self-own during his deposition in E. Jean Carroll's civil suit was more of the same. The bullshit train tends to go off the rails during cross-examination. It's entirely possible that relentless trial coverage, full of videos and screen captures that make clear how guilty Trump and his allies are, could do real damage to the MAGA tribe's efforts to keep pretending their man is the innocent victim of a witch hunt.
For the purposes of the anti-MAGA majority, TV may not matter, beyond the emotional satisfaction of watching Trump make poop-face expressions, day after day, as he faces the possibility of real accountability. MAGA is a movement based more on the rising bitterness of a shrinking right wing minority than on Donald Trump's alleged personal charisma. If Trump disappears tomorrow, all those folks would still be out there.
You can see why Republicans like Geoff Duncan, who still have hopes of salvaging their party, feel like they can see daylight at last. For them, Trump's criminal conduct is the biggest threat. After all, in a purple state like Georgia (which has many deep-red regions) Republicans do just fine with the democratic system. They still win elections much of the time — Georgia has two Democratic senators, but the GOP holds the state house and controls the state legislature, and generally doesn't need to worry about going to jail. Trump has threatened to destroy all that, pretty much permanently.
So, hey, Republicans: Don't sign the card if you're feeling shy, but send Fani Willis flowers, chocolates and a really nice thank-you card. She's put a tremendous amount of work into saving your party from itself. She deserves it.
Joe Raedle/Getty Images
Let's hope Georgia Republicans remember the manners their mamas taught them, because if Fulton County District Attorney Fani Willis succeeds in her mission of punishing Donald Trump, they owe her a big pile of thank-you cards. I recommend 11,780 cards, one for every vote that Trump demanded that Georgia Secretary State Brad Raffensperger "find" during their infamous phone conversation on Jan. 2, 2021. They should probably include some bouquets of flowers and perhaps a peach cobbler or two. As Republican leaders on the ground in Georgia are no doubt aware, if Trump doesn't pay for his crimes, they could very well find themselves once again being told by their party leader: Break the law for me, or lose your political career.
On Monday, the grand jury convened by Willis pushed late into the night before returning a startling, sweeping 98-page racketeering indictment that names Trump and 18 other felony defendants (as well as more than two dozen unindicted co-conspirators and "others not named"). Willis has outlined a large-scale conspiracy intended to keep Trump in power after losing the 2020 presidential election. The indictment names an all-star roster of well-known Trump confidants and advisers — including Rudy Giuliani, John Eastman, Mark Meadows, Jeff Clark, Jenna Ellis and Sidney Powell — as well as lower-level Georgia Republicans allegedly involved in the "fake elector" scheme or in breaching the voting systems in a rural county.
It's not just Democrats who seem to feel giddy about this. Some Georgia Republicans appear to be quietly celebrating the potential downfall of a man who seemed determined to rope all of them into a dangerous criminal conspiracy. After all, these are people, as the Washington Post reported Monday, who heard Donald Trump Jr. present them with a choice: Risk prison for his dad or face the destruction of their careers.
While major players in national Republican politics, including House Speaker Kevin McCarthy, have decided to die on the hill of defending Trump, many state Republican leaders in Georgia (and lots of other places) seem more interested to see Trump behind bars and out of their lives for good. Willis' indictments appear to rest heavily on the testimony of state and local Republicans, some of whom were seen going in and out of the Atlanta courtroom Monday. In front of a jury and the nation, this makes it a lot tougher for Trump and his supporters to sell the "partisan witch hunt" narrative. One of those GOP witnesses, former Lt. Gov. Geoff Duncan, seems especially clear-headed about the fact that Trump is a parasite on his party's hide, and will suck them dry if he's not forcibly removed.
Want more Amanda Marcotte on politics? Subscribe to her newsletter Standing Room Only.
"As Republicans we need to take our medicine and realize the election wasn't rigged," Duncan told Atlanta Journal-Constitution reporter Greg Bluestein, after giving testimony before the grand jury Monday. "Donald Trump was the worst candidate ever, in the history of our party. Even worse than Herschel Walker. And now we are going to have to pivot from there."
Duncan's optimism that his party can "pivot" away from Trump and recover from the MAGA infection anytime soon may be overly optimistic. All he needs to do is look at the immense power that an insurrection-friendly member of Congress from his state, Marjorie Taylor Greene, has amassed in the GOP Congress. Republicans have turned against democracy not just because of Donald Trump, but because of their own growing awareness that right's political agenda is widely unpopular among most Americans.
We can all agree with Duncan, however, that it would be nice if Trump were too busy serving time to run for president.
During the coup, one quote from an anonymous Republican official became immediately infamous as a symptom for the party's failure to take Trump's fascist yearnings seriously: "What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change."
But it's the second part of the quote that came to mind for me during the coverage of these indictments: "He went golfing this weekend. It's not like he's plotting how to prevent Joe Biden from taking power on Jan. 20. He's tweeting about filing some lawsuits, those lawsuits will fail, then he'll tweet some more about how the election was stolen, and then he'll leave."
Yeah, that's not how it went, is it?
We've since learned how much Trump did to try to overturn the results of the election. The evidence that's been released paints a picture of a man singularly obsessed with leading this coup. He worked the phones relentlessly, pressuring state and local officials to break the law for him. He held multiple scheming meetings with his co-conspirators. He badgered Vice President Mike Pence on Christmas Day to steal the election for him. He falsified documents, including a notarized document appealing to Justice Clarence Thomas to halt the electoral vote count. Trump worked harder on his coup, it's fair to say, than he has ever done in either politics or business.
Details like this offer some insight into why Duncan and other Republicans are pinning their hopes on this indictment being the event that finally break the spell Trump holds over the GOP base. It's not just that a possible trial of Trump and the other defendants in Georgia would almost entirely feature Republican witnesses, undermining Trump's efforts to paint this as Democratic persecution. The high drama of the evening was also a reminder of one big difference between Georgia's state courts and the federal courts in which special counsel Jack Smith must work: Cameras. Federal courts hate 'em, but Georgia has them.
Yes, the early part of the evening was a bit underwhelming as Judge Robert McBurney received the indictment, flipped through its pages and then joke to reporters in the room, "Was it all that you hoped it would be?" But when Willis' 98-page whopper finally dropped shortly after 11 p.m., it was worth the wait. And there were the cameras, which weren't present for any of the federal court proceedings. This trial, if it actually goes forward at some point in our lifetimes, will likely be on live TV.
Trump has benefited from the camera-free atmosphere of his previous indictments, including the one he faced in New York, which tends not to permit cameras in the courtroom. We got just one set of photos from that arraignment, showing Trump's grumpy-defendant face, and that was it in terms of evocative imagery. That essentially creates an information vacuum Trump and his propagandists can fill with lies.
As we saw in the House Jan. 6 committee hearings last summer, the wiggle-and-lie games that Trump and his apologists play gets a lot more difficult when they're faced with televised testimony and evidence. Trump's dramatic self-own during his deposition in E. Jean Carroll's civil suit was more of the same. The bullshit train tends to go off the rails during cross-examination. It's entirely possible that relentless trial coverage, full of videos and screen captures that make clear how guilty Trump and his allies are, could do real damage to the MAGA tribe's efforts to keep pretending their man is the innocent victim of a witch hunt.
For the purposes of the anti-MAGA majority, TV may not matter, beyond the emotional satisfaction of watching Trump make poop-face expressions, day after day, as he faces the possibility of real accountability. MAGA is a movement based more on the rising bitterness of a shrinking right wing minority than on Donald Trump's alleged personal charisma. If Trump disappears tomorrow, all those folks would still be out there.
You can see why Republicans like Geoff Duncan, who still have hopes of salvaging their party, feel like they can see daylight at last. For them, Trump's criminal conduct is the biggest threat. After all, in a purple state like Georgia (which has many deep-red regions) Republicans do just fine with the democratic system. They still win elections much of the time — Georgia has two Democratic senators, but the GOP holds the state house and controls the state legislature, and generally doesn't need to worry about going to jail. Trump has threatened to destroy all that, pretty much permanently.
So, hey, Republicans: Don't sign the card if you're feeling shy, but send Fani Willis flowers, chocolates and a really nice thank-you card. She's put a tremendous amount of work into saving your party from itself. She deserves it.
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