I think she will, and you probably do, too. But in the hot minute before we find out what’s really going to happen, let’s consider this intriguing twist. What if Fani Willis doesn’t bring charges against Donald Trump?
If any element of the ongoing story of Trump’s legal problems has become solidly baked in, it is that the Fulton County district attorney intends to indict the former president now that the summer grand jury has been empaneled in connection with the effort to overturn the results of Georgia’s 2020 presidential election. Trump’s legal team has so much as acknowledged in its filings that it expects this, and in media reports, it’s as much an expected reality as the 2024 Super Bowl. Willis herself has broadly hinted her intentions, and so has the foreperson of the grand jury, which considered whether to bring charges.
Willis has had ample time to change her mind, and change it again, however. And the case for charging Trump isn’t as obvious as it appears.
The case which has been developed in Atlanta differs in an important way from the other cases Trump is facing in the way in which it focuses on the 2020 election and its aftermath. The other cases focus solely on Trump. People like his aide, Walt Nauta, figure in them only incidentally.
We don’t yet know how many people are going to be indicted in the Atlanta case, but this has the makings of a much broader indictment of the MAGA movement, from Rudy Giuliani to Mark Meadows, to Georgia Republican Party chairman David Shafer and possibly other prominent Georgia Republicans.
In many respects, the Georgia case looks more like the case brought by the Michigan attorney general last week against 16 Republicans who agreed to act as Trump electors after the election than either the documents case or the impending Jan. 6 case brought by the U.S. Justice Department. The big difference, of course, is that Trump and a significant portion of his national apparatus are involved in the Georgia case.
That means Willis would have a lot of cases to try, even if she were to leave Trump’s name off the indictment list. Trump, after all, has already been indicted twice, and at the moment, I’m writing appears to be on the verge of another. We don’t know how closely Willis and special counsel Jack Smith have been coordinating their movements, but given the parallel movement of their investigations, they have to be talking.
Both Willis and Smith might well reason that they could benefit from a separation of responsibilities, with Smith concentrating on Trump and Willis on Trump’s enablers.
There’s another factor that, in the end, could be decisive. If Trump is re-elected, he would have the power to make the federal cases against him go away, even if most constitutional experts think he doesn’t have the ultimate power to pardon himself. That would not be the case if Trump were indicted and convicted in a state court in Georgia.
That being said, convicting Trump in Georgia might turn out to be a lot more difficult than indicting him. Last week, Fulton County Superior Court Judge Ural Glanville recused all Fulton County judges from hearing a civil case brought by Trump against Willis and Judge Robert McBurney. That means the case will be heard by a judge from the Cherokee district. This case is a side issue, but it’s a reminder that we can’t predict exactly what direction a trial would take if Trump is indicted in Georgia.
Another consideration is the law passed by the General Assembly this year which sets up a commission that has the power to remove district attorneys if it finds they haven’t lived up to their constitutional and statutory duties. Much of the debate around this legislation had to do with DAs who refuse to prosecute drug charges and other offenses, not DAs who do prosecute. Willis’ name did come up when the bill was being debated, however.
Even though the decision to charge Trump isn’t so obvious when you think about it, that’s probably what Willis will do. But keep your eyes on who else is indicted. Trump wouldn’t be just one of the usual suspects, but in this case, he won’t have the spotlight all to himself, either.