There Is No Silver Bullet Here

“My truth.”

That is a phrase directly tied to post-modernity. In post-modernity, there is no objective truth. Exceptions become the rules. The sky cannot objectively be blue because a color-blind person does not see it that way. Police are bad because there are errant police officers. We now define reality based on words, which are redefined, and exceptions become the rule, and the rule becomes the exceptions.

We saw this around the country after the 2020 election, where many actual, legitimate procedures were claimed to be incidents of theft. There were absolutely problems. But in 60 cases filed by President Trump’s team, 59 of them were rejected.

His team claims they were never allowed to present evidence in those cases. But if you look at the underlying cases and actually read them, the evidence they presented was speculation. They were playing guessing games. Courts did not preclude them from presenting evidence. Upon review of what they submitted, their claims did not hold up to the standards necessary for admission into the courts.

As just one of many, many examples, the Trump team submitted expert witness testimony about electronic voting machines in particular counties, but those counties did not use those electronic voting machines.

It was frustrating as not just an elections lawyer in Georgia but actually someone who had helped draft the election procedures in the state, to see people claim things were evidence of fraud and theft that were actually procedures designed to prevent fraud and theft.

The truth got twisted. But it was all to find a silver bullet — that one thing that would stop Joe Biden.

I’m afraid it is happening again in response to Fani Willis’s prosecution of Donald Trump in Georgia.

Here’s what you have to remember about Georgia. The entire structure of the state and its government is designed to diffuse power throughout the state. There are 159 counties with 159 sheriffs within 49 Superior Court circuits, each with a Chief Judge, multiple other Superior Court judges, and a District Attorney — not to mention State Courts, which are different from Superior Courts, and some also have Magistrate Courts and Municipal Courts.

The sheriff in each county has unlimited budgetary discretion, making each county’s sheriff the most powerful person. The Governor of the state has very limited control over those circuits and counties and even his ability to nominate replacement judges is limited.

Georgia’s Governors are not allowed to participate in the pardoning, elections, or education processes of the state directly. Each role is separated into various entities to diversify the power.

Typically, the Speaker of the House is the most powerful person in Georgia because he can control the legislative agenda. Governors have near-plenary economic power in the state, but other powers are restricted.

That’s the structure of the state. Its constitution and laws must be read with a bias against power at the state level.

This brings me to the latest idea that is making the rounds among some friends and others about Georgia that I think is just wrong.

Article V, Section III, Paragraph IV of the Georgia Constitution reads, “The Attorney General shall act as the legal advisor of the executive department, shall represent the state in the Supreme Court in all capital felonies and in all civil and criminal cases in any court when required by the Governor, and shall perform such other duties as shall be required by law.”

The problem here is those outside Georgia are interpreting that to mean the Attorney General of Georgia can take Fani Willis’s case from her and shut it down if the Governor says so. The problem is that the historic understanding of this provision in Georgia’s constitution, as explained by the Attorney General’s office, is that the language refers to initiating a case. Here’s how the Attorney General’s office explains the provision: “Initiating civil or criminal actions on behalf of the State of Georgia when requested to do so by the Governor.” That interpretation is not the present Attorney General’s interpretation. That is every prior Attorney General’s interpretation too.

No Attorney General in the history of the state has ever interpreted that provision to mean he can take an already filed case and make it his own. Given the case law from the Georgia Supreme Court on the diffusion of state power, I cannot imagine any scenario where they would disagree with that. The biases in the state structure are against pre-empting local governments.

Likewise, people are badly misreading a post-Reconstruction era statute that remains on the books in Georgia and is relevant to this provision of the constitution.

O.C.G.A. § 15-18-7 (2022) states, “Whenever any criminal prosecution commenced by this state against any person for a violation of the laws of this state is removed to a United States district court pursuant to Chapter 89 of Title 28 of the United States Code, it shall be the duty of the district attorney of the circuit from which the case was removed, in association with the Attorney General, to appear for the state as the prosecuting officers of the state. The expenses incurred by the district attorney as actual costs in the prosecution of any such case shall be paid by the state out of such funds as may be provided for the operation of the superior courts or as otherwise may be provided by law.”

Follow along here. Here is the key provision:

it shall be the duty of the district attorney of the circuit from which the case was removed, in association with the Attorney General, to appear for the state as the prosecuting officers of the state.

It shall be the duty of (a)the district attorney (b) in association with the Attorney General (c) to appear as the prosecuting officers.

Contrary to what you might have read on the internet, once a case is removed to federal court, it is to be co-prosecuted by both the District Attorney and Attorney General of the state.

That means the Attorney General has to prosecute the case. He cannot unilaterally dismiss it.

Right now, Fani Willis is trying a case in federal court against some federal officials. Neither the federal officials nor the District Attorney nor the Attorney General nor even the federal court have argued the Attorney General is now in charge of the case. Literally no legal officer in Georgia at the state or federal level interprets Georgia’s law that way.

There is literally no case law on this provision. It has never been dealt with. The provision goes back to the post-Reconstruction Era of 1883. The speculation is that the law was put in place to keep statewide officers from dismissing cases that were pulled into federal court as the South grappled with the Reconstruction Era fall out.

Regardless, the reading of the statute plainly and understanding the basics of constitutional law in Georgia make it very clear that the Attorney General of Georgia cannot take over the case in federal court and dismiss it. He has to co-prosecute the case.

Compounding the difficulties in the present case, the present Attorney General, Chris Carr, is an expected witness in the Fani Willis case. He’d be conflicted out of making any decision anyway. He could not dismiss the case if he wanted to because of legal ethics rules. And the Governor of the State and Lieutenant Governor of the state are also tied to the case, raising conflict of interest implications should they try to get the case dismissed.

This all strikes me as the silver bullet theory of politics I’ve written about before. Both the left and the right are intent on bypassing reality in favor of finding a silver bullet that can take out the other side and give them what they want. The left thought the 25th Amendment was their silver bullet against Trump. Now they think the 14th Amendment is. Meanwhile, on the right, they think Article V, Section III, Paragraph IV of the Georgia Constitution gives them what they want. It does not. No legal officer in the State of Georgia has ever interpreted that constitutional provision or related statutory law as doing what some now claim.

But what might help them is the process if they exercise patience. There are no quick fixes here, just as there are no silver bullets. There is a judicial system with a bias towards a defendant being innocent until proven guilty.

I am on the wrong side of friends on this who have strongly held opinions contrary to mine, but I think we’ve increasingly reached the Man For All Seasons “Devil’s Speech.”

The Democrats have been cutting down a lot of laws and shattering precedents. Hello, 14th Amendment push (BLM rioters will have a hard time in Republican states if that works). Many on the right now say we must reciprocate. But, at day’s end, we still have a court system in Georgia and federally that still promote the rule of law.

If we go storming through the laws — editing, revising, twisting, and deleting those we don’t like to get revenge against and stop the Democrats, they will do the same to us.

As Brian Kemp noted yesterday in his press conference, the GOP should not set precedents the Democrats will one day use against us. Some on the right, including many of my friends, think the Democrats are already doing that. But time and time again, Republican-appointed judges are able to stop them. Sometimes, it takes time. And we are not a patient people.

But if we go charging down a poorly thought-out path whose foundation is virtue signaling our view right into a brick wall, we will have gotten nothing but will have sown a path the Democrats will use against us.