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 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.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
Turley, you think you are so smart, such a great legal mind. Well, guess what, Oliver Wendell Holmes never said anything about a crowded theater. Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918) to distribute flyers opposing the draft during World War I. Holmes argued that this abridgment of free speech was permissible because it presented a “clear and present danger” to the government’s recruitment efforts for the war. Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Holmes ruled that it was a crime to distribute flyers opposing the draft, because it presented a clear and present danger. Well, Mr. Trump Acolyte, how is that different than “distributing” false elector slates or claiming the election was stolen when it wasn’t and then trying to overturn it.
You are nothing but a HYPERBOLIC BLOWHARD. I have no idea what Trump has on you, but you are sounding like a parody of Alan Dershowitz who went to the dark side when he no longer was on the “A list” of party invitees on the Vineyard. GW should fire your ass. You are disgrace to the legal profession and you certainly should not be polluting the minds of law students with your false equivalencies.
Holmes ruled that it was a crime to distribute flyers opposing the draft . . .
Wait, so you agree with that ruling and think it would stand up today even outside a war/military setting? Perhaps the First Amendment rubs you the wrong way?
See Schenck v. U.S., 249 U.S. 47, 52 (1919) (“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”).
Miles Rich seemed to be engaging in sarcasm.
And are you not aware that in Brandenburg v. Ohio (1969), the Court modified the clear-and-present-danger standard to only allow for the punishment of speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”?
Dear Lawrance Tribe,
Turley is just joking around, trash talking, there are no ‘self-executing’ constitutional provisions. It’s always been a WIP (work i progess.) .. . and probably always will be.
It’s a feature, not a bug.
*In retrospect, most of ’em require a lot of hard work and elbow grease .. . afaict.
Miles Rich wants to go back and ignore Loving. SCOTUS rulings are forever. Koramatsue is also law of the land, handy to address out of control illegal aliens.
There is a very serious flaw in your cognitive process.
You have failed to grasp and comprehend the clear meaning and intent of American fundamental law—that it is precisely the government that is severely restricted and limited, while individuals are provided maximal freedom.
You may suffer delusions of intellectual superiority and the worst characteristics of an irrational despot.
What you just stated was that Oliver Wendell Whatever, whoever the —- that is/was, was provided the power by the Constitution to arbitrarily amend the Constitution.
What the —- over???
He was not.
Oliver Wendell Holmes, Congress, and no other person or organization have any constitutional power to amend the Constitution, to deny the absolute freedom of speech, or to deny any other constitutional right, freedom, privilege, or immunity.
Amendments to the Constitution must be accomplished through the execution of the constitutionally prescribed amendment process.
I don’t give a —- what anyone says; Americans have the absolute freedom of speech, which shall not be abridged by legislation, dictatorial edict, nonexistent “emergency powers,” or any other means or method.
Distinct, wilful, and deliberate acts to commit espionage, subversion, sedition, insurrection, rebellion, treason, etc., in favor of and in complicity with a declared enemy may be criminalized by legislation.
_____________________
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I agree on most points, Professor, but to say there was no widespread fraud in 2020 is absurd. And if we are to stick with massive mail in voting, no voter I.D. required and ballots being counted in secrecy over the course of days, then 2024 will also be a complete fraud.
Mr. Turley: I’m interested in the part of the story about a “false elector scheme”? Where does this fit in legally? Can you comment?
OT,
Joe Biden to skip all 9/11 memorials.
I agree with this guy,
“It’s no surprise to me that he’s not coming to Ground Zero or any of the 9/11 sites,” Retired Air Force Lt. Col. Donald Arias, who lost his brother Adam during the attacks.
“And quite frankly, I prefer he stay away anyway. We will be spared one of his stories of how he can relate, like he did with the people of Lahaina, how he can relate because of a kitchen fire. We can do without that.”
Biden, in his prime, mocking the UN weapons inspector in Iraq .. . ‘we must come to our milk’
https://www.youtube.com/watch?v=GDi6ItNciCk
*’Weave a circle round him thrice,
And close your eyes with holy dread,
For he on honey-dew hath fed,
And drunk the milk of Paradise.’
Emily Kohrs bears a striking resemblance to Alice the Goon from the Popeye cartoon:
https://pbs.twimg.com/media/Cnz5F4LW8AA1xKh.jpg
Oh, my!
Alice the Goon!
I wonder if Alice felt the embarrassment she enveloped herself in.
If not, a huge defect in Alice’s psyche may have been revealed.
The Grand Jury has confirmed the validity of Trump’s defense: that there was “probable cause” for him to pursue further information regarding what he believed to be election fraud. How so? If the grand jury was able to recommend prosecution for so many people with such a low burden of proof, even though the district attorney did not pursue those charges, the grand jury has demonstrated that any belief by Trump of criminal activity was sufficient justification for him to investigate the matter further. What’s good for the goose…
Oh Turley, the election was stolen.
Just not the way many imagine.
You have to understand what was done, by whom and when.
And the sad thing… most of it was done right in front of your face and you didn’t even see it.
-G
The old saying that a prosecutor can indict a ham sandwich is true. Grand Juries are prosecutorial tools. The standard is very low and it is the prosecutor’s day. Everything is let in and given credence regardless of actual legality in open court.
While this is not good, it is not the end of the world until trial and conviction (if it happens).
I only hope those that are pushing these narratives remember their time will come. Memories run long and whips change hands. So while they can scream all they want, they should keep in mind history does repeat.
Mike Nifong remembers.
Dear Prof Turley,
Not so fast counselor. Fani may be on to something. Perhaps a case could be made for expanding Fani’s vast RICO conspiracy charges and that both the Republican and Democrat political parties essentially operate as private, secretive criminal syndicates that have infiltrated every nook and cranny of American politics, social cohesion and left our vaunted Free press a babbling chorus of chaos, anarchy and a pocketful of mumbles.
The undisputed Godfather of the Democrats, of course, is the Big Guy, He rules with an iron fist and tolerates no dissent, either in government, politics or the media. Other than a few stragglers, there are no DINOs. The Ds and their surrogates in the media are United lockstep.
That’s because, on the other hand, stands the twice impeached, four-time indicted/ facing100s of criminal charges ~> the one and only Trump monkey Apostle. Beset on all sides by conniving back-stabbing RINOs in the halls of power, he nonetheless commands the sympathy, if not the admiration, of a dying nation.
These are the ‘limiting principles’ as I see them.
*and I don’t the country will tolerate another Biden v Trump redux in 2024 .. . assuming we make it that far.
I fear that what these indictments actually show is the corruption of cities like Atlanta (Chicago, DC, Memphis, etc) controlled by Democrats. I suspect there isn’t a single Republican on the grand jury. Incidentally, some of the alleged crimes were outside of Fulton County and thus outside of Willis’ jurisdiction. Just like the Bush family is behind the prosecution of Paxton here in Texas, I suspect the Trump prosecution was instigated by the shadow government of Barrack Obama with Hillary Clinton leading cheers.
I’ve come to the understanding that ANYTHING done by a prog/left dem is dangerous for our nation.
It’s quite simple. Insurrection and rebellion are what? Crimes.
And i dont care what your credentials are or your party affiliation, if that doesnt ring true, you are a partisan hack with an agenda or an idiot.
By the way, you are aware that 54% of the Republican party does NOT want DJT as the nominee, right??
The left loves to use the “even some republicans agree”, when they cant argue the merits.
Tom,
Had my druthers I would like someone else other then Trump AND Biden.
And most Republicans AND Democrats agree, respectively.
This go around, by the time both DNC and RNC conventions conclude, candidates nominated, the majority of Americans will already have their vote in mind.
I am voting Republican as the Democrat party has been highjacked by woke leftists.
What or who are traditional Democrats, like the good professor, going to do? Vote for more of the crazy? Or stay home and not vote at all.
My point for mentioning the trump support was that just because a person has an R doesnt mean they dont have an agenda. Unlike dems, pubs dont march in lockstep because they dont have the fear of being ostracized for not toeing the party line.
But the larger point is that if thats your argument for the validity of a certain viewpoint, its weak sauce.
“EXCLUDE SUCH PERSONS, AS ARE IN SO MEAN A SITUATION, THAT THEY ARE ESTEEMED TO HAVE NO WILL OF THEIR OWN.”
Turnout in 1789 was 11.6% by design.
Vote criteria were male, European, 21, 50 lbs. Sterling/50 acres.
The vote in republics, since inception in Greece, has always been restricted.
Never was America designed or intended to be a one man, one vote democrazy.
The vote was never intended to equal the weight and force of the Constitution and Bill of Rights.
American elections have been perverted into circuses for dependents and parasites to caterwaul about how much society owes them.
The Constitution provides for no individual, specific or particular welfare, or favoritism or charity.
Congress has the power to tax for ONLY debt, defense and general Welfare, general, all or the whole, well proceed, aka security and basic infrastructure as water, roads, electricity, post office, rubbish collection, sewer, etc.
_________________________________
“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
_________________
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
_______________________________________
“[We gave you] a republic, if you can keep it.”
– Ben Franklin, 1787
Fair enough.
What crime had Donald Trump been convicted? Has he even been charge with Insurrection or Rebellion? Various politicians are trying to keep a man off of ballots without even being convicted of anything. Regardless of what one feels for Trump (I am no fan), he has every right to run.
As for the 54% of Republicans that do not want him, if they do not vote in the primaries or do not vote enough for one other candidate for that person to win the primary, it does not matter. The only thing that matters right now is the actual votes cast, not what some people say in a poll.
“What crime had Donald Trump been convicted?”
Exactly.
If we all agree that those are crimes, we must also agree that the ONLY people who can find that he is guilty of those crimes are a) the Senate, if the were committed while he was president OR b) a jury of his peers. End of story.
MSM, and leftists have already convicted Trump without a trial.
They do not believe in due process.
Their version of justice is, well, just look at the Jan6th committee, the snap impeachment, this “special” grand jury.
So Tom…
What happens when those who went to the Capitol to protest were not found to be committing an insurrection? The FBI said it wasn’t.
So if there wasn’t an insurrection… oops.
But since you brought it up…
You remember the texts ‘Viva La Resistance!” ?
Now that would be an insurrection where insiders openly thwarted a POTUS in executing his authority.
Did those people get sent to jail?
Did you see a RICO charge against the lot of them?
Anon
I’m not sure what your point is to the first question. Clearly that could be used by Trump in his defense were he ever to be accused of those crimes. But since he has not been indicted for those by anyone, and was acquitted by the Senate, i don’t even see how this is a debate.
As J. Turley eloquently states: “This “Why not?” philosophy is all part of our impulse-buy politics, where there is little thought 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.” Painfully accurate. And ominous.
“The ‘Why Not’ Culture”
Which headline shows up on the feed as:
“The ‘Why Not’ Cult”
Sam,
I noticed that too.
Then review the Kohrs interviews and suddenly “The ‘Why Not’ Cult” makes sense.
OT but related to the 1stA,
The Government Censored Me and Other Scientists. We Fought Back—and Won.
“Last week, a federal appeals court confirmed that science cannot function without free speech. Dr. Jay Bhattacharya reflects on a victory for himself—and every American.”
https://www.thefp.com/p/i-fought-government-censorship-and-won
Did you watch Kohrs interviews?
If she is the face of the “special” grand jury, then the good professor has it right.
By your standards, it would have been ok for Gore et al to be in contact with Broward county, but not Bush et al. How can you live with your delusional self, never once admitting that something is definitely rotten in Denmark? Have no fear, whomever you are, a one-party system is around the corner which is no doubt what your dark heart desires.
Democrats have weaponized science with their gender ideology; race with their DEI indoctrination; culture with their censorship regime; and the law with their political prosecutions. There’s not much daylight left between Democrats and the Bolshevik regime that took over Russia in 1917. All authoritarian rulers follow this pattern. What hubris to think the US could escape it.
Nothing to see here? Let the Statute of Limitations run out. Make deals without penalty. Don’t investigate. Continuous political pressure from the President of the United States to have investigations thwarted. Why? Joe Biden is corrupt.
—–
BLIND EYE? Feds received waves of warnings about Hunter Biden but delivered no consequences
May 2015: Morgan Stanley bankers flag transactions, reports concerns to regulators
Nov. 1, 2016: Morgan Stanley vice president filed whistleblower complaint with SEC
October 2018: Delaware State Police investigate possible gun crime but bring no charges.
Fall 2018: Ex-federal prosecutor approaches New York U.S. Attorney with information about Hunter Biden from Ukraine prosecutor.
November 2018: Feds opened probe codenamed Sportsman, triggered by evidence of prostitution.
December 2019: FBI seizes possession of Hunter Biden’s laptop, triggering tax probe
June 2020: FBI receive allegations from trusted informant alleging Biden bribery scheme in Ukraine
https://justthenews.com/accountability/political-ethics/blind-eye-feds-received-waves-warnings-about-hunter-biden-delivered?utm_source=daily&utm_medium=email&utm_campaign=newsletter
DOCUMENTS AT:
https://justthenews.com/accountability/political-ethics/blind-eye-feds-received-waves-warnings-about-hunter-biden-delivered?utm_source=daily&utm_medium=email&utm_campaign=newsletter#digital-diary
@S Meyer
The coverup is sometimes worse than the crime.
You have a conspiracy to bury the evidence and slow walk the prosecution.
That should stop the clock.
-G
“. . . lack of limiting principle . . .”
And that is part of the great divide. What JT (and a few others) see as a bug, the totalitarian Left sees as a feature.
Principles by their nature are “limiting” — Do this, don’t do that. When you’re driven by blind desires (as the Left is) — by the desire to ransack, to smear, to rationalize genital mutilation, to control everything — anything that limits is a boundary to be destroyed. Thus the Left’s destruction of the police, civilized discourse, language, political opposition.
Spot on, Sam.