Last month Fulton County District Attorney Fani Willis’ office indicted former President Donald Trump and 18 others as part of a “criminal organization” to overturn his 2020 election loss to President Joe Biden. The 98-page indictment includes 41 criminal counts alleging that Trump and his team attempted to lie, cheat and steal their way toward an ultimately unsuccessful bid to override the will of the people. (All of those charged have pleaded not guilty.)
Predictably, Trump’s allies responded by accusing Willis, an elected Democrat, of playing politics. The DA’s defenders, predictably, said she was just following the law where it led.
Yet from every angle, the State of Georgia v. Donald John Trump serves to shatter the myth that American justice can be separated from American democracy, and that what happens in court should be isolated from the court of public opinion.
And the special purpose grand jury’s final report, released Friday, further undermines that false dichotomy in both the answers it provides and the questions it raises.
Ultimately we, the people, should be in charge here.
The report revealed that Trump won only a single vote from the 26 grand jurors selected to represent their community to determine whether he should be charged with breaking more than a half-dozen of Georgia’s criminal statutes.
Was this one die-hard MAGA Republican who would refuse to acknowledge that Trump could do wrong under any circumstances? Or was it the one clear-sighted person among a score of vindictive jurors eager to bend the law to get Trump? The report doesn’t say, but we do know what happened: Willis followed the overwhelming will of the people, at least as far as Trump and his co-defendants were concerned.
To critics like Sen. Lindsey Graham, R-S.C., the grand jury’s democratic nature is invalidated by Atlanta’s Democratic makeup. On Fox News last month, Graham argued that Trump’s fate “should be decided at the ballot box, not a bunch of liberal jurisdictions trying to put the man in jail,” and accused elected Democratic prosecutors like Willis of “weaponizing the law in this country.”
Yet Willis declined to prosecute Graham himself, despite the fact that the grand jurors voted 13 to 7 (with one abstention) to indict the South Carolinian, based on Georgia Secretary of State Brad Raffensperger’s comments that Graham had called him to discuss potentially throwing out ballots cast in heavily Democratic Atlanta.
Did Willis exercise her prosecutorial discretion because Graham’s grand jury vote was the closest among those disclosed in the final report? Was Willis reluctant to bring charges against elected officials, except in the case of Trump, either as central to the alleged conspiracy or as a uniquely polarizing political figure?
After all, Willis also decided not to charge a former Georgia state senator and two former U.S. senators — all Republicans — despite the grand jury’s recommendation that they, like Graham, be charged with “respect to the national effort to overturn the 2020 presidential election, focused on efforts in Georgia, Arizona, Wisconsin, Michigan, Pennsylvania and the District of Columbia.” We may never know why Willis found the grand jury’s recommendations compelling for Trump and his 18 co-defendants (including personal lawyer Rudy Giuliani and White House chief of staff Mark Meadows) but not for the others.
But Fulton County Superior Court Judge Robert McBurney’s order to release the final report, along with Judge Scott McAfee’s decision to permit cameras in his courtroom, give the American public important information that we can use as citizens to reach our own conclusions. Information that is critical for us to examine how the country holds people to account — and for us to judge their fitness for office.
Because ultimately we, the people, should be in charge here.
Right now, the former president and the forces he represents are trying to vitiate that core American principle, both in law and politics.
Though courts won’t save American democracy, the proceedings against the former president can keep voters trained on what’s truly at stake.
Scratch the surface of the complaints against Willis’ prosecution and you find the un-American view that Democrats and those in their coalition are unfit for self-governance. Trump’s people (including Graham) specifically sought to disenfranchise Atlanta’s Black Democrats at the polls, and now they say the Black Democrat elected by those voters can’t seek justice in court.
Contrast that position with the all-Republican slate of state attorneys general who, with the support of then-President Trump and more than half of Congress’ Republican members, filed suit before the conservative-majority U.S. Supreme Court in December 2020 seeking to invalidate Biden’s win in Georgia, Pennsylvania, Wisconsin and Michigan based on false claims of widespread election fraud that focused largely on those states’ Black population centers. Zoom out a bit and it’s clear the former president’s actions flowed from almost 20 years of Republican efforts to suppress the votes of underrepresented minorities, young people and other groups that have historically given Democrats an edge among the country’s changing electorate. The people, after all, didn’t pick the president in 2016. Trump lost the national popular vote but won the Electoral College, thanks to his razor-thin margins in key swing states. And then he, along with a Republican Senate majority that represented a minority of all Americans, secured a conservative supermajority on a Supreme Court that had already spent a decade weakening voting rights and enabling extreme partisan gerrymandering in congressional and statehouse districting. Yet when voter suppression and structural advantage weren’t enough for Trump to win re-election in 2020, he and his allies turned to subversion and, when that failed, insurrection. And now Trump faces not only the possibility of the 14th Amendment’s bar on insurrectionists running for office but also multiple criminal trials just as he seeks the Republican nomination for president in 2024. He’s using his Fulton County mug shot to rally his supporters and play the martyr to supercharge his candidacy among his Republican base. Willis’ prosecutors could put forward an ironclad case to the jury, but that won’t end the matter. The grand jury was able to outvote its one dissenting member on Trump’s charges, but a single holdout in a jury trial could trigger a mistrial that would have the former president and his allies claiming vindication on the campaign trail. And if Trump’s convicted, he can appeal to higher courts controlled by Republican judges rather than a heavily Democratic jury. Trump understands that law and politics are intrinsically intertwined, and American voters need to realize this as well. Even though courts won’t save American democracy, the proceedings against the former president can keep voters trained on what’s truly at stake in 2024. The special purpose grand jury voted to send Trump to court. But Trump doesn’t need to be convicted for us, the voters in the court of public opinion, to follow our convictions.
Mike Sacks
Mike Sacks is a lawyer and political journalist who has covered all three branches of the federal government for print and broadcast. 
