Yesterday, Fulton County District Attorney Fani Willis sent a letter to the chief judge of the Fulton County Superior Court requesting to empanel a special grand jury "for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia."
The request was triggered by the reluctance of key witnesses, including Georgia Secretary of State Brad Raffensperger, to cooperate without being subpoenaed to testify. The special-purpose grand jury wouldn't have the power to bring indictments, but it "may make recommendations concerning criminal prosecution as it shall see fit."
With this letter, Willis brought back to the fore the actions surrounding the 2020 election contest by former President Donald Trump that are most suspect under both state and federal criminal law. The district attorney seeks a special grand jury with good reason, as Trump appears to have crossed the line into outright illegality, and that behavior merits a serious and thorough criminal investigation.
Since last winter, the public has focused much of its attention on the violent right-wing terror attack on the Capitol on January 6. And this is understandable. But the truth is that the most compelling evidence of Trump's criminality lies in his actions before that day. And nowhere is his misconduct more clearly documented than in the state of Georgia.
A brief refresher is in order. At 3 p.m on Saturday, January 2, 2021, Trump called Raffensperger and attempted to push him to intervene in the counting of Georgia's presidential votes. "I have to find 12,000 votes," Trump said. Trump was joined on the call by his chief of staff, Mark Meadows, and a team of lawyers including Cleta Mitchell. At the beginning of the call, Trump declared, "I think it's pretty clear that we won. We won very substantially in Georgia."
During the call, Trump made a series of spurious claims of voter fraud and announced that he had "probably" won by half a million votes. And then he said the following, words that should be front and center in any criminal investigation of the former president:
And you're going to find that they are--which is totally illegal, it is more illegal for you than it is for them, because you know what they did, and you're not reporting it. That's a criminal, that's a criminal offense. And you can't let that happen. That's a big risk to you and to Ryan, your lawyer. And that's a big risk ... I'm notifying you that you're letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.
Ominously, these rambling demands that Raffensperger change the outcome of the presidential election in Georgia contained the threatening assertion that if Raffensperger didn't yield, he could face criminal sanctions more severe than the sanctions for those Trump accused of casting illegal ballots.
Trump, in a statement distributed by email yesterday, said that his call to Raffensperger "was perfect, perhaps even more so than my call with the Ukrainian President, if that's possible," and repeated his false claim that "massive voter fraud" occurred in Georgia.
As astonishing as the details of that phone call are, the call represents but one part of Trump's efforts to influence the outcome of the Georgia vote. The Senate Judiciary Committee's majority staff report, released on October 7, found that Trump also forced the resignation of the U.S. attorney for the Northern District of Georgia, Byung Jin Pak, after Pak investigated and "did not substantiate" Trump's claims of election fraud in Georgia.
Indeed, that same report indicates that Trump's designs on changing the outcome of the election in Georgia played a key role in his repeated demands that the Department of Justice investigate and take action on a number of wholly false claims of electoral fraud and illegality.
Georgia also figured prominently in a December 27, 2020, phone call with then-Acting Attorney General Jeffrey Rosen, during which Trump allegedly told Rosen, "Just say the election was corrupt and leave the rest to me and the [Republican] congressmen." Jeffrey Clark, the former acting assistant attorney general for the Justice Department's Civil Division, separately threatened Rosen's job if he didn't use the DOJ to coerce Georgia and other states to certify a new slate of electors.
Of course, the efforts regarding Georgia were elements of a much larger effort to undermine and reverse the entire election. Most notably, we know that both behind the scenes and right out in the open Trump was demanding that Vice President Mike Pence take action to, at the very least, unlawfully delay the counting and certification of the Electoral College votes on January 6.
But the question remains: Were Trump's attempts to reverse the outcome in Georgia (and nationally) criminal? There is compelling evidence that they were, under both Georgia state law and federal criminal statutes.
Perhaps the best guide to why is a Brookings Institution report, published in October, that assessed Trump's actions in light of Georgia criminal law. Among the seven lawyers and scholars who wrote the report was Gwen Keyes Fleming, an experienced former Georgia prosecutor and the former DeKalb County district attorney. The report concluded that "Trump's post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes." The crimes include "criminal solicitation to commit election fraud" and "conspiracy to commit election fraud," among others.
I highlight those two statutes because they most plainly apply on their face. Georgia's conspiracy-to-commit-election-fraud statute makes it a crime when one "conspires or agrees with another" to violate Georgia's election laws and, crucially, states that "the crime shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of this chapter is consummated." In other words, the scheme does not have to succeed to be criminal.
Georgia's relevant criminal-solicitation statute is also both straightforward and deeply problematic for Trump. Its first provision states:
A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.
And what is the precise violation of Georgia election law that Trump was conspiring to commit and soliciting others to commit? His demands implicate a number of laws, but among the most applicable is Georgia Code Section 21-2-566, which prohibits willfully tampering "with any electors list, voter's certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, electronic ballot marker, or tabulating machine."
As the Brookings report notes, Trump's demands to Raffensperger appear to represent a "clear request" that "Raffensperger alter the final vote tallies so that Trump would appear to have won the election." If Raffensperger had done so, he'd have tampered "with lists of voters, voting machines, ballot records, DRE equipment, tabulating machines, or voter/ballot data uploaded to the secretary of state website from tabulating machines and DRE equipment."
Although Willis is investigating violations of state law, federal laws may apply as well, most notably a broad federal statute, 18 U.S. Code Section 241, that prohibits "conspiracy against rights." The relevant language makes it unlawful for two or more people to "conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."
As with many federal criminal statutes, broad language is narrowed and defined by precedent, and the precedents under Section 241 are problematic for Trump. The scope of the statute was outlined in a December 2017 guidebook, and its words are instructive.
First, it is unambiguous that the right to vote in federal and state elections is among the rights protected by the statute. Even though the misconduct may have been aimed at the election of Georgia's slate of presidential electors, federal criminal law still applies.
Second, a number of past cases are directly relevant to the actions and intent of the Trump scheme. For example, previous cases have held that it's unlawful to prevent the counting of ballots, fail to count votes, alter votes already counted, or change votes cast at voting machines. The Trump plan depended on changing outcomes by failing to count votes or adding votes until the totals tipped over in Trump's favor.
Third, just as with Georgia law, the conspiracy does not have to succeed for criminal liability to attach. Moreover, the guidebook states, "Section 241 reaches conduct affecting the integrity of the federal election process as a whole, and does not require fraudulent action with respect to any particular voter."
Other statutes may also apply, including 18 U.S. Code Section 610, which makes it unlawful for any person to intimidate, threaten, command, or coerce federal employees to engage in political activities, including working for candidates, and 52 U.S. Code Section 20511(2), which makes it a crime when someone "knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process." But these lack the voluminous precedent of Section 241 and might present a more difficult path for the prosecution.
The Georgia investigation is a consequential victory for the rule of law in this country. Its very existence signals that no man or woman is above the law, a concept foundational to the American experiment. When you walk through the evidence of Trump's brazen effort to bully, threaten, and command subordinates and state officials to steal an election, his actions quite obviously demand a close criminal inquiry.
For a sitting American president to seek to engineer a coup is unprecedented, but our law contains ample precedents that punish other citizens for similar misconduct. The law is not just for the little people. Trump is not a king. He does not enjoy sovereign immunity. He is presently nothing more than a private citizen, and if President Trump broke the law, then Citizen Trump should face the consequences.