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Why this Trump indictment is different

Fani Willis: an “ambitious indictment”. David Walter Banks/Getty

On Monday night, says former federal prosecutor Andrew McCarthy in the New York Post, a district attorney in Georgia unveiled an “ambitious indictment” of Donald Trump and 18 of his campaign operatives for trying to overturn the 2020 election result. This is “the most perilous threat” to the former president yet. In the other election interference case he is facing, the Justice Department has had to invoke federal statutes about fraud and civil rights that don’t “clearly and narrowly” target his alleged misdeeds. As a result, special counsel Jack Smith will have to “stretch the law” to secure a conviction. Georgia’s Fani Willis, by contrast, should have much “smoother sailing”.

Under the US constitution, it is not the federal government but individual states that have primary responsibility for policing elections. Each state has special laws specifically targeting voting irregularities and attempts to subvert the certification process. So, unlike Smith, Willis can invoke Georgia legislation that explicitly deals with the type of actions Trump was involved in. This indictment is also likely to be the “most enduring”. If Trump wins re-election next year, he can immediately order the Justice Department to drop the federal charges. But presidents have “no authority to pardon state crimes”. It remains to be seen whether a Georgia jury will convict the Republican favourite. But if they do, the sentence “would stick” – even if Trump wins the presidency.