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Yesterday, Fulton County District Attorney Fani Willis sent a letter to the Chief Justice of the Fulton County Superior Court requesting that a special grand jury be established “to investigate the facts and circumstances directly or indirectly related to possible trials.” related to disrupting the lawful administration of the 2020 elections in the state of Georgia.”
The request was prompted by the reluctance of key witnesses, including Georgia’s Foreign Minister Brad Raffensperger, to cooperate without being subpoenaed to testify. The special jury would not have the power to bring charges, but it “may make recommendations for prosecution in its sole discretion.”
With that letter, Willis brought back to the fore the actions related to former President Donald Trump’s 2020 campaign, which are the most suspect under both state and federal criminal law. The District Attorney is seeking a special grand jury for good reason, as Trump appears to have crossed the line of outright illegality and this behavior deserves a serious and thorough criminal investigation.
Since last winter, public attention has focused heavily on the violent right-wing terrorist attack on the Capitol on January 6th. And that’s 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 wrongdoing more clearly documented than in the state of Georgia.
A quick refresher is in order. At 3 p.m. on Saturday, January 2, 2021, Trump called Raffensperger and tried to pressure him to intervene in the counting of Georgia’s presidential vote. “I have to find 12,000 votes,” Trump said. Trump was accompanied on the call by his chief of staff, Mark Meadows, and a team of attorneys, including Cleta Mitchell. At the beginning of the call, Trump stated, “I think it’s pretty clear that we won. We won very clearly in Georgia.”
During the call, Trump made a series of false allegations of voter fraud and announced that he “probably” won by half a million votes. And then he said the following, words that should be the focus of any criminal investigation into the former president:
And you will find that they are – which is totally illegal, more illegal for you than for them because you know what they did and you don’t report it. That’s criminal, that’s a crime. And you must not allow that. This is a big risk for you and Ryan, your attorney. And that is a big risk… I tell you that you allow it. Just look. All I want to do is this. I just want to find 11,780 votes, that’s one more than we have because we won the state.
Ominously, these rambling demands for Raffensperger to change the outcome of the Georgia presidential election included the threatening assertion that if Raffensperger did not back down, he would face harsher criminal penalties than those imposed on those accused Trump of illegally casting ballots to have.
Trump said in an emailed statement yesterday that his call to Raffensperger was “perfect, maybe even better than my call to the Ukrainian president, if that’s possible,” and reiterated his false claim that “massive voter fraud” took place have Georgia.
As astounding as the details of that call are, the call represents only part of Trump’s efforts to influence the outcome of the Georgia vote. The Senate Judiciary Committee Majority Report, released Oct. 7, found that Trump also forced the resignation of US Attorney for the Northern District of Georgia Byung Jin Pak after Pak investigated Trump’s allegations of voter fraud and “didn’t occupied” had Georgia.
In fact, the same report indicates that Trump’s intentions to change the outcome of the Georgia election played a key role in his repeated calls for the Justice Department to investigate and take action on a series of completely false allegations of voter fraud and illegality.
Georgia also featured prominently in a December 27, 2020 phone call with then-Attorney General Jeffrey Rosen, in which Trump allegedly told Rosen, “Just say the election was corrupt and leave the rest to me and the others.” [Republican] Congressmen.” Jeffrey Clark, the former assistant attorney general for the Justice Department’s civil division, separately threatened Rosen’s job if he didn’t use the DOJ to force Georgia and other states to certify a new list of voters.
Of course, the Georgia effort was part of a much larger effort to undermine and reverse the entire election. Most importantly, we know that Trump, both behind the scenes and openly, was demanding that Vice President Mike Pence take action to at least unlawfully delay the counting and certification of the Electoral College votes on Jan. 6.
But the question remains: Were Trump’s attempts to reverse the Georgia (and national) outcome criminal? There is compelling evidence that this was the case under both Georgia state law and federal criminal statutes.
Perhaps the best guide to this is a Brookings Institution report released in October that assesses Trump’s actions in the light of Georgia’s criminal law. Among the seven attorneys and academics who wrote the report was Gwen Keyes Fleming, a veteran former Georgia prosecutor and former DeKalb County district attorney. The report concluded that “Trump’s post-Georgia election conduct puts him at significant risk of potential state charges for multiple crimes.” The offenses include “criminal solicitation to commit electoral fraud” and “conspiracy to commit electoral fraud”.
I single out these two statutes because they apply most clearly to their face. The Georgian law on conspiracy to commit electoral fraud makes it a crime if someone “conspires or colludes with anyone” to violate Georgia’s electoral laws, noting that “the crime shall be completed when the conspiracy or agreement is formed and a manifest act has been committed in furthering it, whether or not the violation of this chapter is consummated.” In other words, the scheme need not be successful to be criminal.
Similarly, Georgia’s law on criminal recruitment is both straightforward and deeply problematic for Trump. Your first determination is:
A person commits the offense of criminal solicitation of first-degree voter fraud when, with the intention of having another person commit conduct that would constitute a crime under this article, he solicits, demands, orders, intrusives, or otherwise attempts to do so to cause any other person to engage in such conduct.
And what is the exact violation of Georgia’s election law that Trump has conspired to commit and urged others to commit? His demands imply a number of laws, but among the most pertinent is Georgia Code Section 21-2-566, which prohibits willful tampering with “all electoral rolls, electoral certificates, numbered electoral rolls, ballot boxes, voting machines, and electronic record (DRE) equipment, electronic ballot or tabulation machine.”
As the Brookings report notes, Trump’s demands on Raffensperger appear to represent a “clear request” that “Raffensperger change the final vote numbers so that Trump appears to have won the election.” If Raffensperger had done so, he would have “manipulated electoral rolls, voting machines, ballots, DRE equipment, tabulation machines, or voter/ballot data uploaded to the Secretary of State’s website by tabulation machines and DRE equipment.”
Although Willis investigates violations of state statutes, federal statutes may also apply, most notably a sweeping federal statute, 18 US Code Section 241, prohibiting “conspiracy to violate rights.” The relevant language makes it unlawful for two or more persons to “conspire to injure, oppress, threaten any person in any state, territory, commonwealth, estate or district in the free exercise or enjoyment of any right or privilege or to intimidate him under the United States Constitution or laws.”
As with many federal criminal laws, the broad language is narrowed and defined by precedents, and the precedents under Section 241 are problematic for Trump. The scope of the law was outlined in a December 2017 guide, and its words are instructive.
On the one hand, it is clear that the right to vote in federal and state elections is one of the rights protected by law. Although the misconduct may have been aimed at voting in the Georgian presidential elections, federal criminal law still applies.
Second, a number of previous cases are directly relevant to the actions and intentions of the Trump system. For example, previous cases have found it unlawful to prevent the counting of ballot papers, not to count votes, to alter votes already counted, or to alter votes cast on voting machines. The Trump plan depended on altering the results by not counting votes or adding votes until the totals tipped in Trump’s favor.
Third, just as with Georgian law, the conspiracy does not have to be successful for it to be prosecuted. In addition, the guide states, “Section 241 achieves conduct that compromises the integrity of the federal election process as a whole and does not require acts of fraud with respect to any particular voter.”
Other laws may also apply, including 18 US Code Section 610, which makes it unlawful for any person to intimidate, threaten, order or coerce a federal employee to engage in political activity, including working for candidates, and 52 US Code Section 20511(2 ), making it a crime for anyone to “knowingly and intentionally withhold, defraud or attempt to deprive or defraud of a fair and impartial electoral process from the citizens of a state”. But these lack the extensive precedent of Section 241 and could present a more difficult path for law enforcement to pursue.
The Georgia Inquiry is a consistent victory for the rule of law in this country. Its very existence signals that no man or woman is above the law, a concept underlying the American Experiment. When you review the evidence of Trump’s brazen attempt to harass, threaten, and order subordinates and state officials to steal an election, his actions clearly warrant a close criminal investigation.
For a sitting American president to attempt a coup d’etat is unprecedented, but our law contains numerous precedents penalizing 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 currently nothing more than a private citizen, and if President Trump broke the law, citizen Trump should face the consequences.