The Jackson Pollock School of Prosecution: Why The Latest Trump Indictment is Both Serious and Dangerous

Below is my column in the Daily Beast on the fourth indictment of former President Donald Trump by Fulton County District Attorney Fani Willis.  While I have said that this indictment presents a serious threat to Trump, I am still troubled by the implications of the indictment for free speech and future election challenges.

Here is the column:

Welcome to the Jackson Pollock school of prosecution. The 98-page indictment from Fulton County District Attorney Fani Willis is the legal version of Pollock’s style of throwing paint splatters on canvas as artistic expression. It basically makes every telephone call, tweet, and meeting a separate conspiratorial act.

There are 161 separate acts. Not surprisingly, everyone then becomes part of the conspiracy. The indictment covers 19 people, including Trevian Kutti (the former publicist for R. Kelly and Kanye West). Willis wants them all thrown into a single trial and let the jury figure it out.

But for all the disparate acts that Willis says constitute a criminal conspiracy, part of this emerging picture should worry Trump.

Pollock once advised confused observers that they needed to stop looking for objective meaning. The same may be true with the fourth Trump indictment. Willis simply treats every statement as a knowing falsehood and conspiratorial effort.

The indictment, to many, reads like the type of unabashedly biased spin that’s typically seen on cable television shows.

For example, the indictment relies on calls like the controversial one Trump had with Georgia officials—a call long cited as indisputable evidence of an effort at voting fraud. In the call, Trump pushed his demand for a statewide recount. Trump had lost the state by less than 12,000 votes. When officials insisted that there was little likelihood that such a recount would make a difference, he stated, “I just want to find 11,780 votes, which is one more than we have because we won the state.”

The call is still cited as one of those 161 individual steps toward the criminal conspiracy. Even though the indictment effectively repackages the same claims as the federal prosecution, Willis insists that Trump should be effectively tried twice under these allegations.

It is easy to dismiss such a Pollock prosecution as political gamesmanship. The timing alone in bringing the case (which should have been brought two years ago) is enough for many to discount this prosecution. However, it does represent a serious threat to Trump. It has “legs” as an indictment that is not likely to be dismissed in its entirety before trial.


There are three reasons why this indictment could be the most perilous for Trump, as opposed to the Jan. 6 indictments, which present serious threshold constitutional questions.

First, the racketeering cases tend to be iron-plated before trial because challenges concern the interpretation of facts, which are traditionally questions left to the finder of fact (in this case a jury).

Willis is likely to argue successfully that she should be allowed to prove the case. In the course of that prosecution, Willis probably hopes that one or two of the 18 other defendants will flip and turn state’s evidence.

Second, in D.C., special counsel Smith is essentially trying to create new law, or at least stretch existing case law to the point of breaking down. Conversely, elections are left largely to the states, and state prosecutors routinely bring election-based prosecutions.

Willis may be stretching the evidence, but she is not stretching the law. Racketeering laws are routinely used far afield from their origins in combating criminal gangs.

“Many of us disagreed with Trump after the election and publicly rejected the claims of systemic voting fraud. However, Trump had a right to not only challenge the election but to be wrong.”

Finally, as a state action, this is not a prosecution that can be ended prematurely with a presidential pardon. If Trump is elected, he could grant himself a self-pardon, even a preemptive pardon before trial. Various GOP presidential candidates have indicated that they will also consider a pardon. That could put an end to the Smith prosecutions before any trial if the special counsel cannot try the case before the election.

There is no federal pardon option for Georgia. Indeed, it is even hard to secure a state pardon, which is not issued by the governor but a pardon board.

None of this means that the indictment is justified. While the indictment contains a litany of calls and meetings, there is no clear evidence that Trump did not believe that the results of the election could be flipped through these challenges. The concern is that the indictment criminalizes challenges to elections.

In covering decades of presidential elections for CBS, NBC, BBC, and Fox, every election has produced challenges, including many with little support. This coverage included multiple challenges by Democratic lawmakers to the certification of Republican presidents in Congress.

It has also included challenges to voting machines.

For example, Marc Elias, who served as Hillary Clinton’s campaign general counsel and played a role in the funding of the infamous Steele dossier on Russian collusion, has challenged past elections on such grounds. After the 2020 election, he challenged one New York election by claiming that “there is reason to believe that voting tabulation machines misread hundreds if not thousands of valid votes as undervotes, and that these tabulation machine errors disproportionately affected [the Democrat].”

That was no crime. Elias had every right to seek judicial review even though the claim was quickly rejected as unfounded.

Many of us disagreed with Trump after the election and publicly rejected the claims of systemic voting fraud. However, Trump had a right to not only challenge the election but to be wrong.

That is why the Willis indictment is a serious threat to Trump but also to our system of democratic process. Pollock once said that “when I am in my painting, I’m not aware of what I’m doing.” Unlike painters, prosecutors do not have the same luxury. What Willis is doing here is excessive and it is dangerous.

473 thoughts on “The Jackson Pollock School of Prosecution: Why The Latest Trump Indictment is Both Serious and Dangerous”

  1. Fine throw me in your tint jail…I did the same thong as Trump…I questioned the election. That is basically his crime….oh wait he took another action did I…I called ppl on power to get their taken many agr÷d with his take…about 25 state ags…so of Trump is guilty so are all me the pple and 26 as. Wierd.

  2. Biden did this

    “Russia got richer even as the war in Ukraine raged on last year, while the West shed trillions of dollars of wealth”

    “Russians got richer last year even as the war in Ukraine raged on, while the US and Europe lost trillions of dollars, UBS reported. Russia added $600 billion of total wealth, the Swiss bank found in its annual Global Wealth Report, published Tuesday. The number of Russian millionaires also rose by about 56,000 to 408,000 in 2022, while the number of ultra-high-net-worth individuals — people worth over $50 million — jumped by nearly 4,500. But the US lost more wealth than any other country last year, shedding $5.9 trillion, while North America and Europe combined got $10.9 trillion poorer, UBS reported.”

    Meanwhile Biden has gotten richer while occupying the White House 10% of the time (50% in Delaware, 40% mentally gone)

    “Checks & Imbalances: How Joe Biden Has Become $2 Million Richer While In Office”–imbalances-how-joe-biden-has-become-2-million-richer-while-in-office/

    1. That’s what you get when you’re a nasty war machine screaming Putin must be deposed years after your 20 billion dollar attempt in 2014 failed while you overthrew the democ ratically elected pro Russian government of Ukraine for 5 billion (Gloria Nuland oath testimony).

      This Putin has to go thing is so hypocritical I can’t believe those dummies even voice it. First they lied and whined he got Trump elected and no one should meddle in others elections and instantly they feel they have the right to declare who can be leader in Russia – go ahead murder millions destroy another nation in your now long list and claim you wear a halo.

      Gee, sorry you lost your hunter biden biometa covid copycat labs in Ukraine….

  3. Jonathan: You like to cite polls.Well, here is one you won’t like. Today, ABC News/ IPSOS released there latest poll on what Americans think of the federal and state criminal indictments of DJT. 63% say the state charges against DJT just brought by DA Fani Willis in Georgia are “serious or somewhat serious”. 65 % say the same about the federal criminal indictments. And 50% think DJT should suspend his campaign, i.e., he should drop out of the race for the GOP nomination.

    What are some things can we conclude from this latest poll. First, that the MAGA Republican claims that all the charges against DJT are an attempt by the Biden DOJ to “criminalize speech” and “election interference” are not getting traction with the American people. Second, while this latest poll is only a snapshot in time the GOP is going to have to do some serious soul searching about what candidate they want in 2024. If the MAGA Republicans are allowed to dominate the discussion inside the party and go down that rabbit hole again by selecting DJT it will spell defeat AGAIN next year! Right now it appears the GOP has a death wish!

    1. Pennis Mcintyre
      99% of the people here think that you’re useless ramblings or nothing more than self indulgent horse manure.
      Which of your two statements regarding violence these days was a lie?
      Man up, our democracy, is at stake

    2. as legal minds often state:
      you can indict a ham sandwich.
      pollsters will tell you can also get any result you wish with any poll.
      your numbers mean little.

    3. Dennis – I remember how in 1968 David Broder of the WP said that Republicans would have a death wish if they nominated Richard Nixon. Nixon won the election. Then in 1980, Mary McGory, also of the WP, said that Ronald Reagan would have no chance to win the election because he represented a minority inside a minority party. He won 40 states.

  4. I think the issue of the alternate electors scheme is legally problematic. And in particular actions taken after December 14, and leading up to January 6. I think you have attempted obstruction of congressional proceedings. Not an election challenge. Anything promoting that scheme is a problem.

    Al Gore and 2000 don’t come into play. There was no alternate slate of electors in Florida. And Al Gore gave a concession speech on December 13.

    The Hawaiin example isn’t of any use either. The Nixon and Kennedy campaigns weren’t actively involved in the matter. And the alternate slate of electors actually wasn’t used. After the recount showing a Kennedy win, a 3rd slate of Kennedy electors was certified by the Governor. And even then, Nixon asked unanimous consent for their use because under the law, the Nixon electors were the ones certified by the deadline.

    1. “…Al Gore gave a concession speech on December 13.” Only after the Supreme Court refused Gore’s attempt to force Florida to count and recount ballots in ONE county beyond the date Florida was required, by law, to certify total state election results.

      1. Al Gore is the 300# Hypocrite jetsetting across the globe while decrying climate warming.
        Yeah, he peacefully walked away from his spanking election loss to a Bush royal, just like Hillary got her just desserts when an asshat carnival barker and she wailed on all 6 continents (the Penguins wouldnt have her on Antartica) about her public beating while making money on speaking fees

        1. Not in the slightest. Gore’s pleading to the court was ‘heard’ by the Court and it issued a ruling that Florida’s laws were in line with Florida’s Constitiution and would not nullify Florida’s election law deadline.

          Trump and Texas’ and many others pleadings to the Court were never ‘heard’…not one hearing to review the law was ever taken, no ruling on the evidence was ever delivered.

          1. The point is that 2000 and 1960 aren’t of any use here. Activity by the campaigns stopped by the December certification deadline.

            1. After Secretary’s of State, their courts, their not in charge of it election officials, and numerous demoncrat 501c3’s partisan and biased, illegally changed, altered, moved, corrupted, and otherwise scammed in so many states the laws of the 2020 election with Time magazine bragging about it afterwards and zuckerberg taking a 400 million dollar demoncrat vote buying lap, you and they can blow it out their patooties. I didn’t mention the middle of the night 3:06 am to 4:54 am five swing states 100% biden vote spikes (all illegal of course) of hundreds of thousands of votes, did I ?

              The whole regime has absolutely ZERO credibility, and that also includes every one of the Trump prosecutors and attackers.

            2. You brought up an incomplete narrative. “Illegal Alternate Electors” accusations, 30 months afterwards (seriously, nearly three years after never being in play?) hasn’t yet been adjudicated. No decision has been rendered by any Court.

              So again, no, I don’t agree with your comparison or conclusion.

              1. No. I am stating that everything points to a legal problem in attempting to change the certified electoral votes made by December 14 at the January 6th Congressional hearing. No matter how many court cases or legislative outcomes or vote counts you disagree with up to that point. You are no longer engaged in an election challenge.

                1. Once again, I disagree with your conclusions. Congress counts the Electoral votes. That’s all the Constitution says about the process. It makes no mention of challenging or contested Electoral ballots. Nor has any Court held any hearing about Electoral ballots that were not counted. Your operating on the unlawful Preponderance of Presumption methodology to declare what might have happened in the past, but didn’t actually happen, is a criminal act, three years after it was rendered null by it not happening at all. Good luck with that, Counselor.

                  1. An attempt that fails, because someone doesn’t do as you asked, doesn’t get you out of your legal problems. It looks like Mike Pence was asked to break the Electoral Count Act. Mike Pence thinks he was, and he is going to testify he was asked to overturn the electoral count winner. There’s no plausible interpretation of that act that allows for a refusal to count certified votes, and count non-certified votes in their place. That also gets you to an attempted obstruction of a congressional hearing under 18 U.S.C. § 1512.

                    I’ll see where I end up on the Fraud statutes as we have the attempted use of illegitimate certificates. But fraud statutes always have solicitation clauses. “Solicit or engage.” It doesn’t matter whether you solicit someone to do it yourself.

                    To dismiss these out of hand, or claim this is anything like cross-fire hurricane isn’t very persuasive to me anymore.

                    1. Persuasion was never either of our goals. We both know that.

                      Staying on your original topic, false Electors, consider the following analogy. It’s won’t be perfect but stay with me.

                      Can you imagine Churchill Downs suing the runner-up horse owner, three years after the fact, for having a backup horse that never left the barn, never entered the race, yet Churchill Downs’ entire case rests on just that: ‘it coulda/mighta made a difference three years ago if the runner-up successfully challenged the Official Results’?

                      Absurd is what it Court would call the attempt and it would be correct to consider sanctions for CD and it’s legal team for wasting the Court’s time and money for the attempt; sueing a horse owner for challenging results of race three years past, and let’s not forget, having lost the race anyway at the end of that long ago, sunny Saturday afternoon.

                      Your theory fails the first test, that harm has befallen the plaintiff for a challenge to a race the defendent lost three years ago.

                      And as before, good luck with that, Counselor.

                    2. I can imagine an inquiry if it the trainer of the runner-up horse was asked to juice the horse up with some steroids, and refused to do so.

                      To listen to you tell it, if that were established, there’s no reason to do anything about it. No harm done. The trainer didn’t do it so the race was on the up-and-up. No inquiry needed. The cheaters can stay around the track and go about their business.

                    3. Counselor Steve, As I listened to and understand your opening statement, you’re accusing the defendant of bringing a backup horse and stalling him in a barn at the track. You’re claiming the owner ordered the trainer to ‘juice’ the backup horse but the facts show the trainer refused to follow that order and the horse was never juiced.

                      What I haven’t yet heard is how you, the track, or the spectators have been injured by having a backup horse that wasn’t juiced remain in the barn while the owner’s primary horse ran and lost the race. Do you plan on bringing evidence of any actual injury to yourself, the track or the spectators sustained at the race three years ago? I mean that’s why we’re here, to establish the defendant caused your client or clients to suffer injuries and damages, correct? –Judge JAFO

          2. Al Gore’s case was worse than Trump’s because Democrats in Congress supported his bid to null the election results. So yes, Gore case is not only relevant, it demonstrates the nastiness of Democrats today, as if anyone needs to be reminded

      2. JAFO, The Supreme Court in Bush v Gore ruled on whether the Florida Supreme Court ordered state-wide recount of undervotes was permissible.

        1. 7-2 determined the recount was unconstitutional based on no clear standards consistently applied to all ballots

          5-4 declared time ran out.

          The Fl Supreme Court didn’t do a good job and were put on notice after the case was originally sent back to the Fl. SC 9-0.


    2. Of course the alternative electors were part of an election challenge. The idea was to have electoral votes for Trump available to be counted by Congress if Congress determined that Trump’s electors and not Biden’s were entitled to vote. The election was not over until Congress counted the votes and declared the winner. Challenges could proceed up to that point.

      The alternative electors were not some secret conspiracy. Read Byron York on the publicity surrounding the alternative electors in Georgia generated by the electors themselves. There was no effort to fool or defraud anyone. The alternative electors were just that: options to be called upon in the event Congress determined for one reason or another that their votes should count instead of the Biden electors’. There was no obstruction of a proceeding, or conspiracy to obstruct. There was simply an effort to keep alive the possibility of the proceeding coming out one way rather than another.

      Had it not been for the Jan 6 riot, which neither Trump nor any one else charged in the indictment is alleged to have instigated or participated in, the alternative electors would have been long forgotten. No one would be viewing their existence as part of a criminal scheme. This is nothing but an effort to criminalise an election challenge.

        1. That is a good idea if you believe in the misuse of the court system and abusing those that refuse to agree with you. Keep it up. Stalin is watching and applauding. Beria might have a few nice things to say to you as well.

  5. While there’s a bit of a childish rant going on…

    Lets get back on topic.
    Here’s an interesting take on where this is heading.
    Its not good for the DA’s case.

    This moves to Federal court and you’ll start to see things drop out.
    Meadows for one. And then there are others.

    When you get down to it… Trump’s defense could easily argue that he got and took bad advice from some of his legal counsel and advisors.

    The law that they used to charge Trump is sound.
    The evidence is not.


      1. FJB,
        Ironic is it not bug demand of Darren to enact the civility rule against TTT/Tom or whomever it is.
        Whomever made the heckler veto reference was rather amusing and then bug try to deny it, hysterical!
        Poor, poor bug. Having all this time of his antics forced back down upon him and he throws a tantrum like a 6 year old.
        Poetic justice is it not? 🙂

      2. Tom the Troll had almost all of his trolling comments removed from today’s column (“A Monopoly in Expressing Its Views”). Poor Tom.

        1. Are you sure?
          From what I have seen, most of his comments remain.
          Perhaps you are confused with yours getting deleted.

            1. IOW you feel Tom’s pain from your own bltching experience of comments deleted.
              Suck it up cupcake. Tom has your #

          1. Nope, my comments are still there. Won’t keep you from lying about it though, as you, Tom the Troll, are wont to do.

              1. None of my comments have been deleted. Either you have me confused with another Anonymous (easy to do), or you’re just trolling, or both.

              2. Aww smeagol, scroll on down and see the one where i point out how you come running to the call, lap dog.

    1. “The law that they used to charge Trump is sound. The evidence is not.” Agreed, so why does Turley describe the indictment as, “Serious, but Dangerous”?

  6. @Cernovich

    “A DC federal judge is lying. This is legalized lynching. Trump has no possibility of a fair trial in this den of demons.”

    Julie Kelly 🇺🇸

    “Jack Smith and Beryl Howell are covering up their claims that Trump was a flight risk in order to justify the nondisclosure order attached to Twitter warrant to seize Trump’s data and not inform him. So damn dirty.”

    Background here:

    The Sloppy, Dirty, Secret Grab of Trump’s DMs

    Working with the Obama-appointed chief judge of D.C. federal court, Special Counsel Jack Smith squeezed Twitter for Trump’s data and a hefty fine for contempt. Both claimed Trump was a flight risk.

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