The Prologue to a Farce or a Tragedy

“A popular government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the Power that knowledge gives.” James Madison, 1822 Letter to W.T. Barry.

The continuous flurry of angst on social media against Fulton County DA Fani Willis and those who are incensed that Governor Brian Kemp (and other statewide elected officials) will simply not remove Willis to end the prosecution of Donald Trump and his co-defendants seems unwilling to abate. Various feeds and groups are filled with statements like the ones I’ve chosen to add below:

The rule of law is dead in Georgia.

So Brian kemp are on the evil side with this DA of Georgia!

The law isn’t being followed. This is state sponsored lynching!

YOU CAN BLAME RINO BRIAN KEMP AND THE REST OF THE RINO REPUBLICANS WHO R ALLOWING THIS EVIL TO HAPPEN!

Even our state party chairman, Josh McKoon, posted on Facebook regarding the indictments, “I am ashamed for the legal profession, my country, and my state.”

I continue to be shocked at the willful ignorance of those pushing for some external intervention that would once and for all end Willis’s case.

The indictments have provided the opportunity for grifters and grandstanders to willingly deceive already angry Trump supporters with miraculous fantasy solutions derived from snake-oil readings of the law. What is clear is their problem is not that they’re ignorant; it’s just that they know so much that isn’t so.

There is one point that also seems to elude many of those calling for some sort of deus ex machina to save Donald Trump and the others from the corrupted, partisan hands of the Fulton DA’s office, and that is Willis went through not just one, but two grand juries to produce the indictments.

While those looking to remove Willis or cut her budget for retribution — which would mean that the Fulton County DA’s office would not have the resources to prosecute violent criminals – meaning GRA/MAGA would be “defunding the police” — want to place the full blame solely on the rogue DA. As the slim chances of a special session to impeach and remove Willis have already been discussed, I will point out that the state portion of the budget for District Attorneys is a greater percentage in more rural, multi-county judicial circuits, much of the budget for the Fulton County District Attorney’s Office comes from the Democratic majority Fulton County Board of Commissioners. Budget cuts passed by Republicans would likely not have any effect on the Trump case, but it would allow the Democrats in Fulton County to blame every criminal who walks free and comments another violent crime squarely at the feet of Republicans who rushed to defund the prosecutor’s office.

The fact is that, but for the grand juries, which spent months hearing the evidence, there would be no indictments and no trial.

Now, it cannot be repeated enough that a good prosecutor can get a grand jury to indict a ham sandwich, but there are times that grand juries do fail to return indictments (returning a “no bill”) leaving prosecutors with little choice but to drop the investigation.

A Texas grand jury in June returned a no bill in the high profile case of rapper Travis Scott in a criminal investigation of a deadly crowd surge at the 2021 Astroworld festival. While it would have been hard to imagine given the political leanings of the average Fulton County jury pool that a no bill would have been a remote possibility, the fact is the grand juries did return indictments.

The legal standard to indict is “probable cause” which means that, after reviewing the evidence, including the testimony of several high-profile political leaders, the grand juries decided that it was more likely than not that a crime occurred. That is also the standard when an individual is arrested at a scene. It is a far cry from the standard needed to convict…beyond a reasonable doubt.

The grand jury issue is also key to Willis’s standing to continue in office. While many turn to the newly passed Georgia law creating the Prosecuting Attorneys Oversight Commission as a potential means of ending Willis’s term early, it is failing to prosecute that is grounds to removal. O.C.G.A. §15-18-6 (lines 30-31 of SB 92) notes that it is the duty of a district attorney to, “draw up all indictments or presentments, when requested by the grand jury, and to prosecute all indictable offenses.”

This does not mean that the prosecution does not reek of partisan politics. I have little doubt that if Donald Trump was still a Democrat that the Fulton County DA would have overlooked any small indiscretion as we all know that when a Democrat loses a tight election, it is only due to “voter suppression” or other illegal activity by Republicans, right Stacey?

But political prosecutions are nothing new, and especially not new among Georgia Republicans.

In 2013, Republican State Senator Don Balfour was indicted by a Fulton County Grand Jury on 16 felony counts surrounding the filing of legislative expense reports. Balfour was suspended from the Senate pending the outcome of the case. According to the Atlanta Journal-Constitution, “The charges that led to the trial followed a complaint by McKoon about Balfour’s expense habit. That complaint had prompted the state Attorney General’s Office to begin what turned into a year-and-a-half investigation.”

The Fulton County trial jury eventually acquitted Balfour of all charges in December 2013 and Balfour was briefly able to return to the Senate, but the damage was done as the longest serving Republican in the senate was defeated in the 2014 Republican primary.

Once again, this was the same Fulton County jury pool which will look into the indictments at trial, assuming the appellate courts don’t throw them out as frivolous.

Despite the acquittal, McKoon briefly flirted with an attempt to censure Balfour, noting, “that the state constitution would have allowed the Senate to censure or otherwise punish Balfour even though he was found not guilty,” but dropped the effort when he could not find a single co-sponsor for his resolution.

Balfour wasn’t shy about pointing at several members of the Republican caucus who were anxious to use the court system to remove a political foe, even one in their own caucus. Sitting down with Balfour after the acquittal, Jim Galloway wrote, “More immediately, Balfour hinted darkly – without naming names — of forces in the Senate whom he holds responsible for his 14-month ordeal. ‘When was the last time you saw a felony indictment for $11? A felony indictment for $22?'”

For the unfounded political prosecution, Balfour was able to recover $156,787.60 in attorney fees. The AJC commented the award of attorney fees, “was a final blow to the state’s ill-starred case, which garnered intense public attention but fell apart at trial.”

State law allows state officials acquitted of a crime may seek to recover attorney fees. This may be the calculus for the Georgia Republican Party and various co-defendants who are collecting legal defense funds from donors but would likely receive and keep any award for attorney fees.

If those defending Trump were as confident about his innocence as they claim, they would be jeering on the sidelines, forcing Willis to make her weak case as exoneration would be the best revenge and most hurt her chances at using Trump for a political windfall.

James Madison’s warning that lack of knowledge but the public could result in either “Farce or a Tragedy; or perhaps both” is fully on display in those who want to circumvent the system, gaslighting it for their own fame, political advantage, or both. What’s more, the damage that it does in undermining a key institution and cornerstone of our republic, the independence of the courts and the right to trial by jury will have ripple effects that lead America into being truly a banana republic.

While the system is certainly not perfect, the system has a system that was designed by our Founders as a check against government power. What too many in their defense of Donald Trump are actually advocating for is absolute power, whether that is an absolute power of the Governor, the Attorney General, or the General Assembly over the system. It also harkens to a deep distrust of their fellow Americans. In the end, the same authoritarianism that could be used to sweep away in an instant Fani Willis and her laughable indictments could be used by the opposition to also sweep away that they do not seek fit when they are in power. As Winston Churchill noted while speaking in the House of Commons, November 11, 1947, “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

In our democratic-republic, it comes to the quality of its citizens to know and understand the laws, powers, and institutions handed down by our Founders. It should be instantly observed by any American who believes in the principles of the Founding that anything that would allow one person, or a small group of people, instant and efficient power runs counter to the Revolution that began our nation and our Constitution.

A people cannot be their own governors if they disarm themselves with the power that knowledge gives. It just a matter of time before they will find themselves governed by others.

NOTE: State law allows all acquitted criminal defendants to collect attorney fees. However, only state officials acquitted of a crime can collect attorney fees where a simple approval by the AG is needed. Other defendants would need to follow the procedure outlined in O.C.G.A. 17-11-4.