How Dismissed Claims in Georgia Trump Case Could Be Resurrected

Last week, a Georgia judge dismissed six charges against Donald Trump and his codefendants in their criminal prosecution for election interference, while leaving the rest of the case intact. The dismissed charges alleged that the defendants solicited state officials to violate their oaths of office, but the court found that the indictment lacked specificity. Should Fulton County District Attorney Fani Willis seek reindictment, the Georgia Constitution provides ample bases for establishing more specific charges.

Under Georgia law, it is an unlawful abuse of a government office for a public officer to intentionally violate the terms of their official oath to uphold the federal and state constitutions. The indictment claims that Trump, along with codefendants Rudy Giuliani, John Eastman, Mark Meadows, Ray Smith, and Robert Cheeley, solicited state officials to do just that, by asking lawmakers to appoint Republican electors to the Electoral College despite Joe Biden’s win. Additionally, Trump was indicted for demanding that Secretary of State Brad Raffensberger “find” votes to change the presidential results in Trump’s favor.

But Fulton County Superior Court Judge Scott McAfee found the indictment insufficiently specific as to how the solicited actions would violate the lawmakers’ and secretary of state’s oaths. The judge’s order explained that while the indictment did “contain a reference to the terms of the violated oaths,” the reliance on the U.S. and Georgia Constitutions was “so generic as to compel” the court to dismiss the charges. “On its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime’s study,” the judge explained. “Academics and litigators devote their entire careers to the specialization of a single amendment.”

McAfee further noted that because the federal and state constitutions have significantly different provisions and because the Georgia constitutional tradition is rich in its way apart from the U.S. Constitution, the defendants did not have fair notice about how their conduct in the wake of the 2020 election was purportedly unlawful.

In other words, the indictment should have answered the following questions: Had legislators appointed Republican rather than Democratic electors to the Electoral College — as the defendants had urged — how would that have violated the U.S. or Georgia Constitutions? And had Raffensberger “found” the votes Trump wanted — as Trump had directed — what about that would have been unconstitutional?

While there certainly may be federal constitutional provisions implicated by this conduct, Georgia’s constitution has a number of specific provisions prosecutors could have pointed to in the indictment.

First, the Georgia Constitution robustly guarantees the equal protection of the law. Asking the secretary of state and members of the legislature to overturn the election results means asking them to invalidate the ballots of millions of Georgians and secure the preferred outcome of a minority of voters. Notably, the state equal protection verbiage is more robust than the federal Constitution’s text, which simply guarantees that states shall not deny the “equal protection of the laws.” The Georgia Constitution’s parallel clause says: “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.” Supplanting the preferred electoral outcome of state officials for the will of the voters by refusing to recognize one group of voters’ lawfully cast votes while willing to give greater weight to another would run afoul of Georgia’s equal protection guarantees.

Unlike the federal Constitution, the Georgia Constitution also expressly protects the right to vote by secret ballot. In Georgia, every citizen who is a state resident, meets age requirements, and is not disenfranchised for a criminal conviction is “entitled to vote at any election by the people.” In the 1941 landmark decision United States v. Classic, the U.S. Supreme Court explained that the right to vote, at its core, constitutes the right of qualified electors to cast “votes for the candidates of their choice and to have their votes counted as cast.” Any action whose intended effect is manipulating a fair balloting process to either defeat or ignore the will of voters in an election would deprive voters of this fundamental constitutional right.

Georgia’s Bill of Rights also contains a unique provision that imposes a duty on legislators to protect Georgians’ civil rights. This provision commands the legislature to “enact such laws as will protect” the citizens of the state and their “full enjoyment of the rights, privileges, and immunities due to such citizenship.” The state supreme court relied on this provision in the 1990 decision State v. Miller, upholding a ban on public facial covering enacted to combat Ku Klux Klan violence. The court explained that “safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest” — it is the legislature’s “affirmative constitutional duty.” Because actions by state legislators to overturn the election and unlawfully keep Trump in power would have injured Georgians’ right to equal protection and their right to vote, those actions would also have violated lawmakers’ state constitution duty to protect those rights.

In short, the alleged pressure campaign by Trump and his allies against state officials to alter vote tallies and declare an election void, if successful, would have violated Georgia’s equal protection guarantee, abridged Georgians’ right to vote, and caused those public officers to violate their oath to adhere to the state constitution faithfully. It remains to be seen whether Willis and the Fulton County District Attorney’s Office will seek to reindict the 2020 election subversion defendants for the oath-related crimes or appeal the order dismissing the charges. However, should they decide to reindict, they should have no problem adding the specificity that the judge found lacking the first time around.

Anthony Michael Kreis is an assistant professor at Georgia State University College of Law.