How Fani Willis — and the Possibility of State Prison — Could Haunt a Second Trump Term
It is the racketeering case from Fulton County that could present the most sustained headache for a second Trump term.
President Trump’s rising presidential fortunes have thrown into sharp relief the possibility that he could soon face his legal woes from the Oval Office.
A second turn at the presidency would give a Trump ample defenses over the federal charges handed up by Special Counsel Jack Smith, assuming they survive the Supreme Court’s ruling on immunity. He could, say, instruct a new attorney general to fire Mr. Smith, or even possibly issue himself a self-pardon. What was once a grave threat from federal law enforcement would likely evaporate.
The then 47th president, though, would have far less sway over the state cases against him brought by a pair of elected big city Democrat district attorneys, Fani Willis and Alvin Bragg. Mr. Bragg has already secured convictions in the Stormy Daniels hush-money case, but the presiding judge, Juan Merchan, has postponed by more than two months a sentencing hearing to consider the immunity implications.
It is the racketeering case from Fulton County, Georgia, that could present the most sustained headache for a second Trump term. The case is now frozen as the Georgia court of appeals considers Trump’s motion to disqualify Ms. Willis for her secret love affair with her former boyfriend and special prosecutor, Nathan Wade. The 45th president also cites Ms. Willis’s accusations that her opponents are “playing the race card.”
Ms. Willis made that accusation before the congregation of a historic Black church at Atlanta. It is now being cited by Mr. Trump as evidence that she is trying to poison the jury pool at Fulton County, a majority-minority jurisdiction.
The court of appeals has set a tentative date of October 4 to hear oral arguments on disqualification, though Ms. Willis has moved for the review court to dismiss Trump’s appeal. She argues that he has not yet cleared the evidentiary bar needed to earn a reversal of Judge Scott McAfee’s ruling keeping her on the case once Mr. Wade departed the prosecution.
Whether Ms. Willis keeps her assignment or is removed, though, the Constitution assigns the president scant oversight over state criminal law. He cannot fire a state district attorney, and he is granted the “power to grant Reprieves and Pardons” only for “offences against the United States,” not against the individual states. The Department of Justice forbids prosecuting a sitting president, but that guidance only applies to federal prosecutions.
In 1997, the Supreme Court allowed a federal civil case to move forward against President Clinton. The DOJ, though, has twice reckoned — in 1973 and 2000 — that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” It is for similar reasons that the high court just ruled that presidents are entitled to immunity for official acts.
Ms. Willis has struck a defiant posture despite the obstacles encountered by her case. In March, she acknowledged that there were “efforts to slow down this train” but declared that “the train is coming.” The Atlanta Journal-Constitution reports that one ally of Ms. Willis argues that she won’t “be deterred by the results of an election … in order for the prosecution to stop a court would have to intervene.”
During a hearing at an earlier stage of the case, Trump’s attorney, Steven Sadow, contended that the Constitution’s Supremacy Clause and his duties as president of the United States dictate that “this trial would not take place at all until after his term in office.” At the time, Mr. Sadow was arguing for an indefinite delay in the case, past a possible second term for Trump.
The section of the U.S. Constitution that he cites ordains that “this Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”
This means that when state law and federal law conflict, federal law triumphs. Otherwise, state laws would govern where federal law is silent.
Trump’s best defense against a trial at Fulton County were he to take the oath of office in January 2025 is likely the Supreme Court. First, Ms. Willis’s indictment must survive the immunity ruling. Trump’s attorneys are likely to argue that her charges, like Mr. Smith’s, are founded on official acts, and therefore immune. Whoever is prosecuting the case is liable to respond that acts like, say, calling Georgia’s secretary of state or assembling an alternate slate of electors are unofficial and therefore not immune.
The logic, though, of the Supreme Court’s ruling in Trump v. United States could lead the justices to intervene to foil any attempt to try — or convict — Trump during a potential second term. Chief Justice Roberts quotes Alexander Hamilton in 70 Federalist for the proposition that the “Framers designed the Presidency to provide for a ‘vigorous’ and ‘energetic’ Executive,” an aim that a criminal prosecution appears likely to frustrate. As would an order to report to prison, with or without the Secret Service in tow.
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