Pollak: Breitbart News Vindicated; Under Georgia Judge’s Logic, Trump’s New York Conviction Should Be Tossed

Fulton County, Georgia, Superior Court Judge Scott McAfee dismissed two counts against former President Donald Trump on Thursday for a lack of jurisdiction. By the same logic, Trump’s New York convictions should be tossed.

At the time that Trump and 18 co-defendants were indicted, Breitbart News flagged the problem that Georgia was trying to enforce federal laws in a state court, apparently in conflict with the Supremacy Clause of the Constitution.

Breitbart News reported (emphasis removed):

The indictment covers conduct in other states, not just in Georgia. While the indictment focuses on Georgia, it includes conduct in other states, such as a public hearing about voting irregularities in Pennsylvania. It also attempts to implicate Trump and his campaign in violations of federal laws, suggesting that the local, county prosecutor thinks she can enforce federal law. That may be an attempt to steal the limelight from U.S. Special Counsel Jack Smith; it may also be unconstitutional.

Breitbart News also reported:

The indictment also attempts to use a county court in Georgia to charge the defendants for crimes allegedly committed on a national scale and in violation of a federal election, which typically fall under federal jurisdiction.

In his decision, Judge McAfee wrote that while not all of the state charges were preempted by federal laws such as the Electoral Count Act, “the United States Supreme Court’s decision of In re Loney, 134 U.S. 372 (1890) preempts the State’s ability to prosecute perjury and false filings in a federal district court, Counts 14, 15, and 27 must be quashed.”

Counts 14, 15, and 27 relate to the attempt to file false documents; the conspiracy to file false documents, and filing false documents. Though the indictment cited Georgia statutes, the documents themselves were filed in (count 27), or sent to (counts 14 and 15) federal courts. (The filed document was a complaint in federal court in Georgia about alleged voter fraud; the mailed document was a list of alternative Electors that was sent to the federal court.)

(Trump was charged with counts 15 and 27, but not 14, so while three counts were tossed, only two pertained to him.)

Judge McAfee explained that “unlike the forgery of currency which can be used to commit fraud against individuals in the state, filing false documents in U.S. District Court is an offense — like perjury — committed directly against the public justice of the United States because that is where the primary effect of the false filing lies.” Because federal laws already exist to police federal courts, the state cannot prosecute alleged violations of those courts’ rules on its own.

By Judge McAfee’s logic, Trump’s 34 convictions in New York on charges of fraudulent business filings should be overturned. Judge Juan Merchan allowed District Attorney Alvin Bragg to exceed the statute of limitations by claiming that Trump had made false filings to conceal another crime, and allowed the jury to consider federal campaign finance laws as among the possible statutes that Trump had violated — even though the Federal Elections Commission (FEC) never took any enforcement action against Trump or even opined that he had broken the rules.

If federal courts and tribunals exist to enforce federal campaign finance laws, or to punish false filings, then arguably it is unconstitutional for a state court to preempt the FEC or federal court, and Trump’s conviction should be tossed.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of The Agenda: What Trump Should Do in His First 100 Days, available for pre-order on Amazon. He is also the author of The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency, now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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