Opinion: What Fani Willis’ case shows us about the power of local prosecutors

Opinion by Dave Aronberg

(CNN) — Whether they are called district attorneys, state’s attorneys or something else, the job of local prosecutors has traditionally flown under the national political radar. That is, until now. As the destroyer of so many traditional norms, former President Donald Trump has turned otherwise low-profile prosecutors into international figures of historic importance, making household names out of Fulton County District Attorney Fani Willis and Manhattan District Attorney Alvin Bragg, Jr.

As a state attorney myself — Florida is the only state that removes the apostrophe and the “s” from the title — I have long believed that this government position is too often overlooked come election time.

We are the chief law enforcement officers in each jurisdiction, with the weighty power to deprive others of their freedom. Police can arrest someone, but if the prosecutor does not agree, the suspect goes free. Since we have the final say on charges, we also have a higher burden. Law enforcement has the power to make an arrest based on probable cause, but prosecutors have an ethical duty only to file charges when we have a good faith basis to believe we can obtain a conviction beyond a reasonable doubt.

Even though 90% of all cases are in state rather than federal court, the Watergate era helped enshrine federal prosecutors in America’s consciousness as the central figures in our criminal justice system. Although state cases such as the unsuccessful prosecution of O.J. Simpson could occasionally captivate the American public, they never had impacted a national election or the future of our democracy.

By contrast, a special counsel’s federal investigation of a president, whether from Kenneth Starr or Robert Mueller, posed an existential challenge to the governance of our republic.

It seems that nearly every legal analyst on cable television is a former federal prosecutor, perhaps because cable networks recognize the significance of federal cases, such as Trump’s four indictments. But although many of these legal observers correctly predicted that Trump would be the first American president ever to be indicted, few could foresee that it would come in New York state court.

US Attorney General Merrick Garland may be the top prosecutor in the country, but he had no power to stop a first-term elected district attorney in Manhattan from making history.

As outraged GOP leaders in Congress found out, one of the advantages of being a local prosecutor is that your only bosses are the voters in your district. No matter how much they complain, members of Congress cannot tell you what to do. Neither can the US attorney general.

In fact, unlike the attorney general, a local district attorney cannot be fired by the president. (Florida Gov. Ron DeSantis has now removed two state attorneys for being so-called “woke” prosecutors, but a federal court ruled the Governor exceeded his power, and the matter is on appeal.)

In some ways, state prosecutors have more power than their federal counterparts. An internal US Department of Justice policy prevented federal prosecutors from charging then-President Trump for obstruction of justice during the Russia investigation. State prosecutors have no such constraints. And unlike federal criminal convictions, state criminal convictions can be pardon proof: A president’s pardon power has no effect on state cases, and a majority of states divest the governor of such unilateral authority. In Georgia, for example, only an independent board can issue pardons to applicants, who must first wait five years after completion of their sentences.

Special Counsel Jack Smith has deservedly earned a reputation as a pitbull, but his cautious four-count indictment against Trump at the federal level in DC for election-related crimes pales in comparison to Fulton County District Attorney Willis’ 41-count tour de force.

Wary that a future Republican president will order the Department of Justice to drop his pending case, Smith attempted to expedite the trial schedule by excluding Trump’s six co-conspirators from the indictment. District Attorney Willis, in contrast, has no such time pressure. She aggressively indicted Trump and 18 co-defendants for a litany of crimes, including Georgia’s powerful racketeering law, which raises the complexity of her case and decreases the likelihood of a speedy trial.

Because election law is largely enforced by the states, Smith smartly limited his ambition, focusing only on the strongest charges he knew he could prove. He may have reached a deal with Trump’s former White House chief of staff Mark Meadows to provide cooperation in exchange for some level of immunity.  That’s the same Mark Meadows who Willis just indicted for racketeering and soliciting a public official to violate his oath of office. The lesson for Meadows is that the local district attorney isn’t automatically bound by any deal with the feds.

We are still in the month of August, but 2023 is shaping up to be The Year of the State Prosecutor. Willis and Bragg are not the only state prosecutors making headlines this year. The booming “true crime” genre has made local cases must-see-tv (and streaming), with the state murder trials of Alex Murdaugh and Lori Vallow taking center stage. Meanwhile, internet sleuths and the entire online true crime community continue to be obsessed with the state prosecution of University of Idaho quadruple murder defendant Bryan Kohberger.

Trump’s legal team is so fearful of state court that they have been fighting to “remove” his New York criminal case to federal court. Mark Meadows has already filed a removal motion in the Georgia case, and Trump will certainly do the same. The former president and his co-defendants obviously think federal court offers a friendlier jury pool and the possibility of a Trump-appointed judge akin to Judge Aileen Cannon in the Mar-a-Lago documents case.

So far, Trump’s attempts to escape New York state court have failed, and he will likely learn the same lesson in federalism when he tries to remove his latest criminal case to a federal courthouse. It should also serve as a reminder to us all that what goes on in our local courthouse has as much, and often more, of an impact on our lives than what happens in those exalted buildings in Washington, DC.

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