Whatever one thinks of Donald Trump, no one should assume that the recent plea agreements in the criminal indictment filed by Fani Willis, district attorney of Fulton County, Georgia, or the public apologies she demanded legitimize the claims made against the former president and the other defendants. This includes the lawyers indicted for doing what they’re ethically obligated to do: Represent to the best of their abilities the interests of their client.
In fact, the plea deals show the weakness of Ms. Willis’ case. They were sweetheart deals, practically impossible to resist. The defendants were facing hundreds of thousands of dollars in attorneys fees to defend themselves before what would almost surely be a politically biased jury and a partisan prosecutor who has filed charges attempting to criminalize perfectly lawful activities—such as Mr. Trump’s “nationally televised speech” claiming that he had won the 2020 election (Act 1 in the indictment).
As I explained in a legal analysis back in August, Ms. Willis’ indictment is criminalizing activities protected by the First Amendment, including “the freedom to speak, to engage in political activity, and to petition their government for a redress of grievances.”
This prosecutor is engaging in a profound assault on the democratic process and the rule of law, misusing a law intended for going after mobsters and drug cartels, the Georgia Racketeer Influenced and Corrupt Organizations Act, against individuals who were questioning the outcome of an election, something they had a constitutional right to do, whether they were right or wrong.
Consider the seriousness of the charges that Ms. Willis brought against the defendants. She alleges violations of 41 provisions of various criminal statutes, one felony after another. These include “false statements and writings, impersonation a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, conspiracy to defraud the state, acts involving theft, and perjury,” charges that could land various defendants in prison for the rest of their lives.
The four defendants who have pleaded guilty were accused of violating 23 of those 41 different provisions. Ms. Willis claims all four of them violated the RICO statute §16-14-4(c), which alone calls for a minimum sentence of either a substantial fine or five to 20 years in prison—or both.
In the face of these serious felony charges and her claim of a grand conspiracy to defraud the state of Georgia and its citizens, what does she agree to?
Sidney Powell, Ken Chesebro, Jenna Ellis and Scott Hall all got no jail time, only various periods of probation and community service, fines ranging from $5,000 to $6,000, and a requirement to testify if called upon by the prosecutor and make a public apology. And Ms. Powell had to agree to an official gag order banning her from talking to anyone about the case, particularly the media.
But the most important, overlooked part of these plea deals was that Ms. Willis agreed to give all of the defendants “first offender treatment” under Georgia Code § 42-8-60.
What does that mean? It means that their guilty pleas are being held in abeyance, and when these four fulfill the terms of their sentence, the serious charges against them will go away. As the statute outlines, a defendant “shall be exonerated of guilt and shall stand discharged as a matter of law.”
The criminal indictment goes on for almost 100 pages and claims the defendants “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the  election.” If Fani Willis’ case is so serious and so substantial, and the defendants’ actions represented such a threat to Georgia, why would she allow any defendants to get away with probation, no jail time, relatively minor fines, and an agreement to dismiss all charges against the defendants as if they were never filed in the first place, giving them a completely clean record?
For the three lawyers who took the “get out of jail free” deals—Chesebro, Ellis and Ms. Powell—that is especially important because it means they would not automatically lose their law licenses and thus their ability to earn a living.
I can’t fault any of them for taking this deal, which probably seemed almost too good to be true. Why would Ms. Willis offer such a deal if her case was so solid? What it suggests is that Ms. Willis is misusing the judicial system as a political weapon to extract guilty pleas from defendants in order to convince the public and the media that what she is doing in targeting the former president, his political allies, and his lawyers is a credible, valid prosecution.
It is not.
This piece originally appeared in The Washington Times