A criminal trial of former President Trump would be a legal extravaganza surrounded by domestic political upheaval before a worldwide audience. The prosecutors would have to be first rate, top-of-their game lawyers who do not make mistakes. They will be in uncharted legal territory: No former U.S. president has ever walked into a courtroom to face criminal charges.
Of the four criminal investigations of Trump (two federal, two local district attorneys), the one most likely to first result in charges is led by a prosecutor who so far does not appear equal to the monumental challenge.
In Georgia, Fulton County District Attorney Fani T. Willis may be about to indict Donald Trump for election interference in connection with the 2020 presidential election in that state. The likely charges are that Trump allegedly pressured Brad Raffensperger, the Republican secretary of state, to “find” him the winning margin of votes and assembled a slate of “false” alternate electors to vote for Trump in the Electoral College.
The concern over Willis arises from her embarrassing conflict of interest during the grand jury investigation, compounded by the behavior of Emily Kohrs, the forewoman of a special grand jury that Willis empaneled and ran on a day-to-day basis. Between them they managed to jeopardize the appearance of fairness, impartiality and dignity that any grand jury proceeding must have, but especially one where a Democratic district attorney may be about to indict a former Republican president who is a declared candidate for election.
Willis was disqualified from investigating one of the pro-Trump alternate electors – State Sen. Burt Jones, the 2022 Republican nominee for Georgia lieutenant governor – because she had headlined a fundraiser for Jones’s potential Democratic opponent. (Jones won the general election.) The judge who disqualified Willis said that her participation in the fundraiser was “harmful” to the investigation’s integrity and called it a “what-are-you-thinking moment.” He also criticized Willis for “almost nightly” national media news interviews about the investigation.
Emily Kohrs, the forewoman of a special grand jury that issued a redacted report recommending prosecution of unidentified individuals (another grand jury will vote on any charges), did her own media rounds. “It’s not a short list,” she publicly said of the special grand jury’s charging recommendations. Asked if Trump’s name was on it, she replied, “you’re not going to be shocked. It’s not rocket science.”
True, she didn’t say Trump’s name, but it was clear whom she meant. Kohrs also described how she swore in one grand jury witness holding a Teenage Ninja Turtle Popsicle that she had gotten at an ice cream party put on by Willis’s office and called Raffensperger, who testified in the grand jury, a “geeky kind of funny.”
Kohrs claimed to be following guidelines from a Fulton County judge on what she could or could not say, but an alert prosecutor would have asked the judge to issue an order stopping Kohrs’s out-of-control media interviews or at least tried to informally discourage the interviews, which Willis apparently did not do. Instead, the Kohrs media tour enabled Trump’s attorneys to brand Willis’s investigation as “clown-like” and potentially move to dismiss any indictment.
A prosecutor typically presents evidence to a grand jury without defense counsel or a judge present and must only meet a probable cause standard to obtain an indictment — it’s tennis without a net. What will happen in a high-stakes, high pressure trial, where Willis must meet the beyond-a-reasonable doubt standard, where a judge is scrutinizing her evidence and where defense counsel can cross-examine the prosecution witnesses, object to admission of evidence and call their own witnesses?
Willis may yet put a game face on and tighten the Fulton County law enforcement ship. If not, and if she brings charges against Trump, justice and the country will not be served by this kind of amateurism.
Gregory J. Wallance, a writer in New York City, was a federal prosecutor in the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six representatives of bribery. His newest book, “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia,” is due out later this year. Follow him on Twitter at @gregorywallance.