The "Why Not" Culture: Why The Georgia Final Report Should Worry Us All
Below is my column in the Hill on release of the final report of the Special Purpose Grand Jury in Georgia. The recommendation for sweeping indictments involving 39 people, including current and former senators, only magnifies fears over political prosecutions.
For many of us, the inclusion of figures like the senators reflects a rogue grand jury.
However, Rep. Adam Schiff (D., Cal.) insisted that Sen. Lindsey Graham was “lucky” not to be indicted. According to Schiff, Graham calling Georgia officials about the counting or discarding of votes was enough to justify a criminal charge. Presumably, since Graham could be indicted with Trump, Schiff would also consider him eligible to be barred from ever running again for office under the 14th Amendment, as discussed below.
It is the “why not” approach to criminal and constitutional law.
Here is my column:
With the release of the special grand jury final report in Georgia, the nation finally was able to see what foreperson Emily Kohrs last February was giggling about in interviews.
Call it the “Why not?” report.
Back then, when Kohrs was asked if there were recommended charges, she chuckled and said, “Can you imagine doing this for eight months and not coming out with a whole list of recommended indictments? It’s not a short list. It’s not.’”
In addition to nodding at an expected Trump indictment, she added, “There may be some names on that list that you wouldn’t expect.” After all, why not?
The final product did not disappoint. The members recommended 39 people for prosecution, including Sen. Lindsey Graham (R-S.C.) and former Sens. Kelly Loeffler (R-Ga.) and David Perdue (R-Ga.). They also included lawyers who argued for recounts or investigations into alleged election fraud.
While the report expressly claims that the Fulton County District Attorney’s office did not create the list, it was the office of Fani Willis that presented the law, the evidence and potential targets to the special grand jury. During that process, these members concluded that politicians voicing support for the former president and his allegations could be criminally charged for doing so.
The news that Willis did not indict Graham and others infuriated many on the left. Liberal websites were inundated with comments like “I want all the enablers charged, tried, and given long sentences as traitors to our country” and asking why the list did not include Senators Grassley, Cruz, Lee and “147 current and former members of the House, just to name a few.”
The disappointment of the special grand jury members and commentators is understandable. When one reads the indictment of the 19 defendants, it is surprising that all of the other 20 were dropped. While the indictment does contain serious charges against some individuals, Willis used a sweeping racketeering theory to indict in gross.
One possible reason Willis dropped some of these targets is that she knew the indictment of these senators would have been quickly and firmly rejected by the courts as the criminalization of political speech.
However, the 160 individual acts detailed in Willis’s report include speeches and social media postings by Trump and others claiming evidence of widespread voting fraud.
I disagree with those claims, but many citizens held the same suspicions of the election. Many still do.
It is understandable why the grand jurors thought that anyone pushing these claims was committing a crime, given the 160 acts cited by Willis. Graham, for example, called Georgia Secretary of State Brad Raffensperger after the November 2020 election to ask about absentee ballots and whether groups of ballots could be rejected.
That call was not ultimately deemed worthy of an indictment. However, Willis launched her investigation based on Trump’s continued demands that Raffensperger investigate the vote tally in two other calls. Once again, I agreed then and now with Raffensperger in his refusal. But the question is whether such requests are evidence of a crime.
I have long criticized the misrepresentation of the two Georgia calls by the Washington Post, which later issued a correction in its reporting. Although it recently made a startling contradictory statement on the truth of its original claims, the transcript of the calls shows that Trump did not tell officials to simply add more than 11,000 votes.
I still disagree with his claims, but I have maintained that Trump was making a predictable argument in a settlement negotiation that he only needed that number of votes and that a new recount or continued investigation would find them.
My questioning of the use of the calls as evidence of a crime has given many people the vapors. They insist that it was preposterous to think that Trump was actually asking for continued recounts or investigations instead of demanding that Raffensperger commit fraud. Yet Raffensperger himself recently took the stand and confirmed that the call was a “settlement negotiation” over whether to conduct further recounts or investigations.
The question is when advocacy or inquiries or negotiations become criminal acts. Willis’s first grand jury clearly believed that senators who called for recounts or Raffensperger’s resignation should go to prison. The comparison between their recommendations and the eventual indictment does not clearly answer how such acts are distinguishable as crimes.
The same lack of limiting principle is evident in the new theory being pushed by various experts under the 14th Amendment to bar Trump from ballots on the grounds that he “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies thereof.” Beyond the tendentious claim that the Jan. 6 riot was an actual insurrection, they also maintain that the provision is self-executing, requiring no vote of Congress for secretaries of state to bar Trump from next year’s ballots.
Even though Trump has not been charged, let alone convicted, of insurrection (or even incitement), these advocates believe that he can be removed from the ballot because of his election claims, his inflammatory rhetoric and his delay in calling for supporters to leave the Capitol. This is one of the most dangerous legal theories to arise in decades.
This week, Democratic Arizona Secretary of State Adrian Fontes aptly described the claimed right to disqualify as a “radical” measure that would “encompass every elected office in our government — state, local, federal, and so forth.” Indeed, Democrats have called for barring not just Trump but 120 Republicans in Congress from running for office.
As with the Georgia special grand jury, the question is “Why not?” If the standard is “giving aid or comfort” to insurrectionists, then why not throw hundreds of other Republicans who supported the challenge to certification on Jan. 6 off the ballot? And while we’re at it, why not bar every lawyer who helped file claims of voting fraud from ever running for office? They all gave aid or comfort with their actions.
By this reasoning, Rep. Jamie Raskin (D-Md.) and other Democrats could have been barred from ballots for opposing Trump’s certification in 2016 without any basis, along with leaders such as Hillary Clinton, who continued to call the election “stolen” for years. In 2016, there were also violent riots in Washington opposing Trump’s inauguration, thanks in no small part to such rhetoric. We can then have different candidates of both parties removed from ballots in every state.
This “Why not?” philosophy is all part of our impulse-buy politics, where there is little thought given to the implications of actions beyond immediate vengeance and satisfaction. It is a criminal and political system based on the giddy philosophy of Emily Kohrs.
