When a new prosecutor took over the Georgia 2020 election case against Donald Trump and his co-defendants, I noted that one of the options was to “withdraw the case completely, as Trump hopes.” In a pre-Thanksgiving court filing, prosecutor Peter Skandalakis took that route. The case is now dead.
Though the outcome is unsurprising in light of the disqualification of the prosecutor who brought the case, Fani Willis, it’s worth analyzing Skandalakis’ thinking behind the burial. He provided it in a 22-page memorandum.
He wrote that he began “evaluating this case with a basic truth: It is not illegal to question or challenge election results.” That’s true, though it doesn’t answer the question of whether the case should proceed.
Skandalakis, who heads Georgia’s prosecution council, did attempt to answer that question in his memo. But while some of his explanation appears reasonable, some of it does not.
Take the infamous phone call with Georgia’s secretary of state, Brad Raffensperger, in which Trump pressed to “find 11,780 votes,” which would have won him the state he was losing to Joe Biden. Skandalakis deemed the call “concerning” but said that “reasonable minds could differ as to how to interpret” it.
“One interpretation is that President Donald J. Trump, without explicitly stating it, is instructing the Secretary of State to fictitiously or fraudulently produce enough votes to secure a victory in Georgia,” he wrote, adding that an “alternative interpretation is that President Donald J. Trump, genuinely believing fraud had occurred, is asking the Secretary of State to investigate and determine whether sufficient irregularities exist to change the election outcome.”
That might be how the defense would have framed the call if the case had gone to trial. But prosecutors frequently implore juries to use their common sense, and this would have been an easy instance of doing so.
On top of that specific example, some of the general reasoning in the memo stands out as well. Take Skandalakis’ reference to special counsel Jack Smith’s federal prosecution of Trump over similar conduct, which Smith moved to dismiss after Trump won the 2024 election, due to the Justice Department’s policy against prosecuting sitting presidents. Skandalakis wrote that Smith “ultimately concluded the federal case could not be prosecuted because of the U. S. Supreme Court’s [presidential immunity] decision in Trump v. United States and the re-election of President Donald J. Trump.”
But Smith wanted to continue the federal prosecution against Trump, notwithstanding the Supreme Court’s immunity ruling. Smith was pressing the issue in the trial court after the high court’s July 2024 ruling, until Trump won the election later that year. In explaining to the trial judge why the DOJ was moving to dismiss the case due to its policy, Smith noted that he had just filed a motion “explaining that the conduct charged in the superseding indictment was not immune from prosecution under Trump and that the case should proceed to trial.”
Another notable point in the memo is where Skandalakis said his office lacked the resources to take on the case. “Our agency is simply not equipped to carry out this case while meeting the essential duties required under the current budget — or under any realistically conceivable budget the State could provide,” he wrote.
The implication is that, even if he had found the prosecution worthwhile, he wouldn’t have been able to move it forward anyway. Perhaps it would have been better to leave it at that.
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