The Georgia probe that may indict a president
On Jan. 2, 2021, President Donald Trump called Georgia Secretary of State Brad Raffensperger and asked him to “find 11,780 votes” to overturn the results of the state’s presidential election.
It was a call that may go down in history as the launching pad of a criminal inquiry. Atlanta-area prosecutors have conducted a wide-ranging investigation into whether the Trump campaign and its allies illegally interfered in Georgia’s 2020 vote and electoral certification.
Why We Wrote This
The U.S. continues to edge toward a fraught moment of decision: Plotting to overturn an election is not the sort of thing a democracy can overlook, experts say. Others point to a need to think carefully before prosecuting a president for talking to an election official.
Now that probe has reached a turning point. A special grand jury empaneled by Fulton County District Attorney Fani Willis has wrapped up its work and written a final report. A judge is weighing whether to publicly release the document. On Tuesday, Ms. Willis said a decision on whether to indict the former president and his associates was “imminent.”
Thus, it is possible that Georgia will be the first place America might encounter the political and legal ramifications of court action against a former leader.
For Norm Eisen, senior fellow at the Brookings Institution and co-author of a lengthy study of the case, “Probably the most important question for our democracy is whether there are charges against the former president, to the extent that the attempted coup intersected with Georgia.”
On Jan. 2, 2021, President Donald Trump called Georgia Secretary of State Brad Raffensperger and asked him to “find 11,780 votes” to overturn the results of the state’s presidential election.
It was a call that may go down in history as the launching pad of a criminal inquiry. Since then, Atlanta-area prosecutors have conducted a wide-ranging investigation into whether the Trump campaign and its allies illegally interfered in Georgia’s 2020 vote and subsequent electoral certification activities.
Now that probe has reached a turning point. A special grand jury empaneled by Fulton County District Attorney Fani Willis has wrapped up its work and written a final report. Following a Jan. 24 court hearing, a state judge is now weighing whether to publicly release the document.
Why We Wrote This
The U.S. continues to edge toward a fraught moment of decision: Plotting to overturn an election is not the sort of thing a democracy can overlook, experts say. Others point to a need to think carefully before prosecuting a president for talking to an election official.
Ms. Willis will then weigh whether to indict Mr. Trump and associates who helped try to influence the Georgia results. She appears to be nearing a fateful decision more quickly than the federal investigation overseen by special counsel Jack Smith – on Tuesday, she said a decision was “imminent.”
Thus, it is possible that Georgia will be the first place America might encounter the political and legal ramifications of court action against a former president. Some analysts believe the Georgia case has weaknesses and Ms. Willis may give it a pass. Others think it is strong and that an indictment is the most likely outcome.
“Probably the most important question for our democracy is whether there are charges against the former president, to the extent that the attempted coup intersected with Georgia,” says Norm Eisen, senior fellow at the Brookings Institution and co-author of a lengthy study of the case.
Here are some answers to basic questions about the Georgia investigation:
What’s new in the case?
A special grand jury in Fulton County has heard months of testimony in the Georgia election case. Trump lawyers Rudy Giuliani and John Eastman and South Carolina Senator Lindsey Graham are among the witnesses who have appeared before the panel.
Now the grand jury appears to have wrapped up its work. On Tuesday, Fulton County Superior Court Judge Robert McBurney held a court hearing to hear positions on whether the grand jury’s final report should be released to the public.
Ms. Willis argued that it should not, saying she was “mindful of protecting future defendants’ rights.” Disclosing the report now could complicate possible indictments stemming from the information, she said.
“Decisions are imminent,” the prosecutor told Judge McBurney.
No lawyer for Mr. Trump or his associates attended the hearing. An attorney representing a coalition of media groups argued that it is in the public interest to release the special grand jury’s work as soon as possible.
Under Georgia law, special grand juries cannot issue their own indictments. Prosecutors can use the information from their final report to seek indictments from a regular grand jury.
“People are rightfully putting a lot of emphasis on this report, perhaps not because of what we’ll find out ... but more so because it certainly demarcates a new iteration of this all coming to a close or just beginning in a very new and important way,” says Anthony Michael Kreis, professor of law at Georgia State University College of Law.
What did Georgia investigate?
Georgia was central to Mr. Trump’s efforts to overturn the election and stay in the Oval Office. A swing state, it gave Mr. Biden a narrow victory of 11,779 votes. The Trump team appears to have believed that if they could get state officials or legislators to throw a wrench in the election certification process, it was possible other states would halt or delay their own proceedings.
The January call from Mr. Trump to Mr. Raffensperger, in which the president made a litany of debunked and unsubstantiated claims about alleged election fraud in a number of states, is a crucial part of the Georgia investigation. Chief of staff Mark Meadows and several conservative lawyers were on the line for that call, as well.
But it wasn’t Mr. Trump’s first call to Georgia officials pressuring them to change numbers. Almost a month earlier he had called Gov. Brian Kemp and urged him to allow state legislators to award state electoral votes. Governor Kemp refused.
Later in December, Mr. Trump called Frances Watson, the lead investigator in Mr. Raffensperger’s Secretary of State office, who was conducting an audit of mail-in signatures. He urged her to find the “dishonesty” he alleged was rampant in the state’s absentee ballots.
“The people of Georgia are so angry at what happened to me,” Mr. Trump told Ms. Watson.
But phone calls are not the only Trump team actions now in the Fulton County prosecutor’s sights.
They are looking at alleged misstatements about election fraud made before state legislative committees by Mr. Trump’s lawyer, Mr. Giuliani. Last August, Fulton County prosecutors informed Mr. Giuliani that he is a “target” of their investigation.
And prosecutors revealed in court documents last year that 16 people who took part in the fake elector plan, which drew up a purported list of Electoral College voters allied with Mr. Trump, have also received letters telling them they are “targets.”
What is going to happen now?
Ms. Willis has said nothing directly about her intentions. It is possible that the work of the special grand jury has convinced her that bringing prosecutions in the election case may not result in convictions.
However, Ms. Willis – an elected prosecutor – has shown an affinity for big, difficult cases that invoke Georgia’s racketeering law, which is more sweeping than its federal Racketeer Influenced and Corrupt Organizations (RICO) counterpart. Last August she filled a 220-count racketeering indictment against 26 people for allegedly conducting home invasions of Atlanta celebrities and social media influencers.
It is unlikely she will go after only high-level, or low-level, actors in the election case, say legal experts. She might wrap them all together in one large prosecution.
“I’d almost be surprised if it’s not structured as a RICO prosecution,” says Clark Cunningham, professor of law at Georgia State University College of Law.
Among the crimes that could be alleged are solicitation to commit election fraud or conspiracy to commit election fraud, harassing poll workers or interfering with the administration of an election, criminal solicitation, and false statements made in support of the fake electors plan.
The Brookings Institution has compiled a 304-page analysis of the reported facts and applicable laws of the Fulton County Trump investigation. Asked if he believes the probe will result in charges, co-author Mr. Eisen says, “Yes, I do.”
If Mr. Trump himself is charged, his most important factual defense will be that he was just pressing his strong good-faith belief that he had actually won the Georgia vote, according to the Brookings analysis.
But just because he thought he had won, that does not mean he could break laws in furtherance of that belief, says the analysis. And the record is “uniquely free” of any evidence that he did win, the report says. The existing outcome was affirmed and reaffirmed under a process overseen by GOP officials.
Still, some legal analysts are skeptical of the Georgia case.
It is possible prosecutors don’t have enough evidence of alleged crimes, said former federal prosecutor Renato Mariotti on a recent episode of his podcast, “It’s Complicated.” The recorded phone call between Mr. Trump and Mr. Raffensperger might not be enough to hang a prosecution on.
As an elected prosecutor who will face voters in 2024, Ms. Willis has a motive to bring a prosecution no matter what, Mr. Mariotti added. That may be especially true given Fulton County’s deep blue electorate. Mr. Trump’s lawyers are sure to make that a significant part of any defense.
Mr. Trump can insist that he had a genuine belief that suitcases of ballots were illegally counted. “‘I’m president and I’m talking to a state official about my election’ – we need to be very careful about prosecuting that,” said Mr. Mariotti.
