The special grand jury will begin issuing subpoenas for some of the approximately 30 witnesses who have declined requests for voluntary interviews. These first witnesses are then served and appear in June. Mr Trump and those closest to him have rushed to court to challenge subpoenas in the past, but are unlikely to be given the opportunity in this first wave. Diligent prosecutors usually start with less controversial witnesses, and Ms. Willis is a diligent prosecutor. When Mr. Trump or those closest to him are served, subpoenas will most likely be challenged in court — but that’s likely months away.
If Mr Trump is indicted, it will spark a legal battle. There are significant legal defenses Mr. Trump could attempt. He could argue that he has constitutional immunity from prosecution for his actions as President, that his words were protected by the First Amendment, or that he even acted in absolute good faith because he genuinely believed he had won.
The justice system will ultimately decide whether these defenses work. However, inciting voter fraud falls outside the scope of the President’s official duties protected by immunity, the First Amendment does not protect against criminal activity, and a President cannot successfully rely on good faith if he has been repeatedly told by his own officials that there is no fraud. Nonetheless, no one should regard the case as a bull’s eye.
The case also in no way diminishes the importance of the January 6 Committee of the House of Representatives. In fact, the committee will most likely assist the Georgia DA’s office while it continues its own investigation. (Ms. Willis and the committee have reportedly already been in contact.) For example, a lawsuit with Mr. Meadows revealed important details of the alleged conspiracy to overthrow the Georgia election. An email filed by the committee of Cleta Mitchell, one of the attorneys helping Mr. Trump, included a detailed 11-point memo about the cancellation of the election. Ms. Willis, who operates out of Washington, may have taken years to receive this email and other similar evidence.
Jury trials, which we have both tried and overseen, are living events and success is never certain. But in Georgia, when it reaches this stage, the evidence is strong, the law is favorable, the prosecutor is solid, and the cause – democracy itself – is just.
Norman Eisen, a senior fellow at Brookings and chairman of the United States Democracy Center, was a special counsel to the House Judiciary Committee during Trump’s first impeachment and author of Overcoming Trumpery. Donald Ayer, a former US attorney in the Reagan administration and assistant attorney general in the George HW Bush administration, is an associate professor at Georgetown Law and on the Advisory Board of States United.