Iwas waiting for the Fulton County, Ga., indictment of former president Donald Trump — and, it seems, a cast of thousands — with an open mind. Fani Willis in Atlanta, like Alvin Bragg in Manhattan, is first and foremost an elected Democrat and, in this era (which I hope fades away soon) it is good politics for an elected Democrat to wield the law-enforcement powers with which she has been trusted against the party’s nemesis. That, naturally, does not make for good law enforcement — quite the opposite.
On the other hand, as I opined yesterday, in our federalist constitutional system, elections are principally conducted and policed by the states. As a result, I thought it was likely Willis would have an easier time with at least some aspects of her election-interference case than Biden Justice Department special counsel Jack Smith will have with his. Because the federal government is not the first line of defense when it comes to policing elections, federal criminal law does not much address that function. Ergo, Smith has to apply legal concepts — fraud, obstruction, and civil rights — that were not enacted for the election-integrity purpose to which he is applying them. Where you come out in the hot debate over that depends on how well you think the laws invoked fit the facts alleged. Willis, to the contrary, is a state official responsible for enforcing specific election-integrity laws. I calculated that she would be able to invoke statutes that better fit the conduct at issue.
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