Fani Willis Forgets the Sixth Amendment

The ruling by Judge Scott McAfee quashing six of the 41 charges against President Trump and his camarilla is yet another misstep for District Attorney Fani Willis. It is a victory for the bedrock constitutional principle that a criminal defendant must be fully informed of the charges against him. Ms. Willis, who has been feeling the heat for her extracurricular activities, now has to answer for an impermissibly vague indictment.Judge McAfee writes unsparingly that the “lack of detail concerning an essential legal element is … fatal.” He explains that Ms. Willis’ indictment contains “all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission.” The charges all relate to Solicitation of Violation of Oath by a Public Officer, but too often, Judge McAfee observes, Ms. Willis fails to identify the “underlying felony solicited.”This coyness is hardly harmless. The Sixth Amendment ordains that “the accused shall enjoy the right to . . . be informed of the nature and cause of the accusation.” Due process also demands that an indictment be, in the words of one Georgia court, “perfect.” To Ms. Willis’ contention that alleging a constitutional violation is enough, the judge reminds that “the United States Constitution contains hundreds of clauses.” One of the quashed counts relates to the telephone call between Mr. Trump and Georgia’s secretary of state, Bradley Raffensperger. That’s the one where the then-president told the state official that “I just want to find 11,780 votes, which is one more than we have.” If, the judge reckons, that colloquy is to constitute a stand-alone crime, then Ms. Willis is required to do more than just say it is one. It remains, though, in the indictment as an “overt act.”Judge McAfee explains that the quashals do not “mean the entire indictment is dismissed.” He allows that the ambiguities that mar the charge sheet are “easily remedied,” though a second quashal would bar a second prosecution. Still, the success of these defendants in finding a defect in Ms. Willis’ indictment could suggest that prosecutors are playing fast and loose with a solemn duty — protecting the constitutional rights of the accused. Judge McAfee is still to rule on whether Ms. Willis is disqualified from the case, and it is possible that in ordering her to fix her indictment he is telegraphing that she has a future on this prosecution. Fulton County’s code of ethics ordains that an “appearance” of a conflict of interest is enough to disqualify. What about, then, an “appearance” of sloppiness in respect of due process? We’d quash that in a New York minute.

Fani Willis Forgets the Sixth Amendment

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