Judge Scott McAfee dismissed three more counts in the 2020 election indictment brought by Fulton County district attorney Fani Willis and her special prosecutor/paramour Nathan Wade. This included two of the counts against Donald Trump. Judge McAfee concluded that a Georgia statute making it a felony to submit false filings in federal court were preempted under the supremacy clause, relying on the Supreme Court’s decision in In re Loney (1890) that “the power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had.” That required, in his view, the dismissal against Trump of Count 27 of the indictment (which alleges a series of false representations to a federal court in Georgia) and Count 15 (which alleges a conspiracy to submit false electoral votes, including to a federal court).
Assuming the judge is correct — I haven’t dug into the weeds of the argument — this is a grievous blow to the prosecution, or should be. As I observed when I went in depth through the indictment, Count 27 was really the only “meat and potatoes crime” (in Bill Barr’s phrase) charged in the whole sprawling indictment. It laid out a series of factually false assertions that Trump swore to in a verification filed with a federal court. That is, if proven, an actual crime, not a made-up elastic theory. But if Judge McAfee is correct, it is one beyond the power of the state legislature to prohibit.
If your argument, as a prosecutor, is that the law must be enforced at all hazards and without fear or favor, it helps to actually get the law right. Losing the only clear statutory crime in the case is not good news for Willis.