Between November 2020 and January 2021, then-President Donald J. Trump made an unprecedented attempt to overturn the results of a free and fair presidential election. At the heart of this attempt was a multifaceted attempt to recoup his loss in the state of Georgia, which was corroborated by multiple recounts and lawsuits. Due to the potentially criminal nature of some of Trump’s conduct, Fulton County District Attorney Fani Willis announced on February 10, 2021 a criminal investigation into the activities of the former president and his allies. She said fee decisions could come as early as November or December 2022.
In this second edition of our October 2021 report, we review the investigation and its basis. We assess the publicly known facts and relevant laws, and analyze the extent to which the former President may be held criminally responsible for his conduct in Georgia. We conclude that Trump faces significant risk of criminal prosecution in Fulton County.
facts
Trump’s effort to overturn the Georgia election began by claiming victory in the state before the vote count was complete. As votes were still being processed from November 3 into the following week, Trump bombarded Georgia election officials with tweets unfoundedly alleging voter fraud and urged those officials to deviate from codified voting procedures. Meanwhile, his campaign and allies filed a series of lawsuits in state and federal courts to contest his loss. Trump’s efforts escalated as two recounts confirmed Biden’s narrow win.
In December 2020, Trump reportedly began calling Georgia officials directly, including Gov. Brian Kemp and Attorney General Chris Carr, urging them to support efforts to get his loss reversed. Trump’s personal attorney, Rudy Giuliani, appeared before the Georgia legislature and made false allegations of fraud and misrepresented the law to persuade state lawmakers to take extraordinary measures to reverse Biden’s victory. Later, when his own acting attorney general refused to use the Justice Department to support Trump’s efforts, Trump managed to install a loyalist at the helm of the department who planned to send out a draft letter designed to mislead and influence the Georgia legislature to convene to overturn the election results. Additionally, Trump’s campaign officials reportedly helped coordinate Republican state officials for a meeting on Dec. 14, 2020, to sign and submit to Congress and the national archives a bogus election certificate purporting to prove Trump’s victory in the state.
Finally, on Jan. 6, as Congress neared confirmation of Joe Biden’s victory, Trump called Secretary of State Brad Raffensperger on Jan. 2. In the call, Trump threatened and begged Raffensperger to “find” 11,780 votes, tipping the state’s presidential election in his favor.
Law
Based on these facts and a wealth of additional public reporting, Trump appears to be at significant risk of being prosecuted for both election and non-election crimes in violation of Georgia state law.
Potential election crimes for discussion by Georgia prosecutors include: (1) Solicitation of voter fraud, Ga. Code Ann. § 21-2-604(a); (2) intentional interference with the exercise of voting duties, Ga. Code Ann. § 21-2-597; (3) Interference in primaries and elections, Ga. Code Ann. § 21-2-566; and (4) Conspiracy to Voter Fraud, Ga. Code Ann. § 21-2-603. While the elements of these crimes vary, the seriousness of these crimes lies in the fact that through behavior such as calling on Raffensperger to “find 11,780 votes” and possibly staging the sham election scheme, Trump has been shown to admonish Georgian officials to alter the legitimate outcome of the election. All of Trump’s behavior before and after the election indicates a clear and consistent intent to hustle and pressure government officials to reverse the election results.
Criminal liability under Georgia law can affect not only Trump but others, such as Rudy Giuliani, the 16 bogus voters who all received target letters from Willis warning they could face criminal charges.
In addition, evidence suggests that Trump and his cohort, including bogus voters, may have committed other off-title crimes such as: making false statements, Ga. Code Ann. § 16-10-20; improperly influencing government officials, Ga. Code Ann. § 16-10-93; Forgery in the first degree, Ga. Code. ann. § 16-9-1; and Criminal Advertising, Ga. Code Ann. § 16-4-7. The same core fact pattern comes into play: Trump is accused of repeatedly lying to Georgia officials about the 2020 election and of using this misleading behavior, intimidation and threats to pressure them to change the election result.
Trump could be charged with possible violations of Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. The law recognizes that violations of individual criminal laws by a single person are bad, but a company that repeatedly breaks the law is worse and should be subject to additional penalties. In order to be charged, the law requires a “pattern” of misconduct, evidenced by violations of two or more specific offenses, including the offenses of misrepresentation or improper influence listed above. Willis has experience prosecuting RICO cases and her investigative team includes a RICO expert.
defenses
If the district attorney files charges, Trump’s attorneys will likely present a number of defenses that either downplay his behavior or attempt to shield it from prosecution. These may include claims that Trump enjoys immunities that protect federal officials generally from violating the powers conferred on them by the Constitution and federal statutes; that Trump’s contact with Georgian officials is protected by the First Amendment; that charging him would amount to selective criminal prosecution or retaliation; or that he had no intention of committing any wrongdoing because he genuinely believed he had won the election. We also consider the unfolding of events if Trump were to attempt to refer the case against him to federal court in Georgia, and the possibility that Trump could seek a preemptive pardon from state officials. While these points are worth considering, we believe they are unfounded and would ultimately do Trump no good.
It is vital to the integrity of our rule of law and constitutional republic that investigations continue and that facts and evidence continue to be accounted for. As Judge Kavanaugh observed in the Trump v. Vance case, “No one is above the law.” For more information on all of these points, see the report here.
>> Download and read the full report
