Fulton County District Attorney Fani Willis’ investigation into Donald Trump and his allies’ attempts to overturn Georgia’s 2020 presidential election results has been underway for nearly two years and its first indictments are likely weeks or even days away. While we don’t know what crimes Trump and his allies will be charged with, the expected indictments will bring desperately needed accountability and demonstrate that no one – not even the former president – is above the law.
The special purpose grand jury that began investigating potential criminality last May has completed its work, and recommended that its report be made public. At a hearing on January 24, 2023, prosecutors argued against releasing the report immediately, suggesting that the appropriate time to release it would be if and when the prosecution decides to bring charges, signaling that decisions may be imminent. On February 13, 2023, Judge Robert McBurney ruled that the report’s introduction and conclusion, as well as section VIII, in which jurors outline concerns that some witnesses may have lied under oath, can be made public. Other parts of the report however, including charging recommendations, won’t be made public yet.
Since Willis began her investigation, target letters have reportedly been sent to Trump, his personal attorney Rudy Giuliani, as well as up to 18 others, including some or all of the 16 fake electors, notifying them that they are targets of the investigation. Meanwhile, the special purpose grand jury has reportedly heard testimony from crucial witnesses, including Secretary of State Brad Raffensperger, Trump’s personal lawyer Rudy Giuliani, former national security advisor Michael Flynn, Senator Lindsey Graham, former White House aide Cassidy Hutchinson, and former Trump Chief of Staff Mark Meadows.
Below is a summary of the charges that the special purpose grand jury may recommend and an explanation of some of the legal issues likely to arise in the near future if Trump and others are charged. For a more complete understanding of these legal charges and the potential defenses that Donald Trump may raise, please see CREW’s report written with the Brookings Institution.
Election related crimes:
- Solicitation to commit election fraud (Ga. Code Ann. §21-2-604(a)); Intentional interference with performance of election duties (Ga. Code Ann. §21-2-597); Interference with primaries and elections (Ga. Code Ann. §21-2-566); and Conspiracy to commit election fraud (Ga. Code Ann. §21-2-603)
While the elements of these charges vary, the crux of each offense is that through conduct such as Trump’s call to the Secretary of State’s chief investigator Frances Watson, urging her to find fraud by departing from established audit procedures, his call with Georgia Secretary of State Brad Raffensperger demanding, and at times threatening, that he “find 11,780 votes,” and the orchestration of the fake electors scheme, Trump pressured Georgia officials to change the lawful outcome of the 2020 presidential election in Georgia. The full extent of Trump’s actions before and after the election provides clear and consistent intent to solicit and pressure government officials to reverse the election results.
Non-election related crimes:
- Making false statements (Ga. Code Ann. § 16-10-20); Improperly influencing witnesses (Ga. Code Ann. § 16-10-93); Forgery in the first degree (Ga. Code Ann. 16-9-1); Criminal solicitation (Ga. Code Ann. § 16-4-7); False swearing (Ga. Code Ann. § 16-10-71)
Trump is alleged to have repeatedly lied about the 2020 election to Georgia officials and to have used that misleading conduct, as well as intimidation and threats, to push them to change the election outcome. Trump may have committed the crime of false statements and improperly influencing government officials when he repeatedly told Raffensperger that he won the election as well as when he listed numerous inaccuracies and falsehoods about the election. Because the documents signed by the fake electors included falsehoods about their role and authority in the 2020 election, they may have committed false swearing and forgery in the first degree. Moreover, Trump and his allies may have committed criminal solicitation when they solicited conduct from Georgia state officials to change the election results in Trump’s favor.
- Georgia’s RICO Act (Ga. Code Ann. § 16-14-1 et seq.)
The Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act recognizes that if violations of individual criminal statutes by a single person are bad, an enterprise that repeatedly violates the law is worse and should be subject to additional sanction.
To be charged, the law requires a “pattern” of misconduct as shown by violations of two or more specified crimes, including the false statements or improper influence crimes mentioned above. Experts believe that RICO charges are a very real possibility for Trump based upon his repeated calls to election officials, false statements, and alleged coordinated attempts to provide fraudulent electoral certificates.
Upcoming legal issues
Empanelling a separate grand jury
A special purpose grand jury serves an investigative function and only focuses on one case or issue, unlike a regular grand jury which might hear evidence in hundreds of cases. Although special purpose grand juries in Georgia typically investigate public corruption, they are a useful vehicle to investigate complex issues of inquiry and allow a jury to develop a deeper understanding of the issues. Special purpose grand juries are not subject to the typical two-month fixed term of regular grand juries in Georgia, but rather are empaneled for any time period required to complete their investigation. Unlike a typical grand jury, a special purpose grand jury cannot return a “true bill” of indictment. They can however issue public reports after review by a supervising judge. The report can recommend indictments for criminal acts uncovered during the investigation, but it cannot recommend indictments against specific persons. The district attorney can then pursue indictments of any recommended crimes through a regular grand jury. So, even if the special grand jury made recommendations in its report, Willis will need to ask the regular grand jury to indict. In Fulton County, the regular grand jury is always empaneled and it meets every Tuesday and Friday.
Right to speedy trial
Defendants in Georgia have a constitutional right and a state right to demand a speedy trial. The right to a speedy trial applies when a person is formally charged, accused of a crime, or indicted. Under Georgia law, a criminal defendant must be brought to trial by the next succeeding regular court term of their arrest. In Fulton County, defendants who are indicted can request speedy trials that begin by the close of the term that follows the two-month period in which they are indicted. Regular grand juries (as opposed to a special grand jury) in Georgia serve for two-month terms. Because of this, most charges are brought at the beginning of a new grand jury term. In this case, charges may be brought in early March, when the next grand jury term begins.
Potential defenses raised by Donald Trump
Trump’s lawyers will likely argue a variety of defenses that either downplay his conduct or seek to shield it from prosecution. This includes the following defenses:
Immunity: Immunity is the contention that Trump is protected as a federal official from infringements on authorities vested in him by the Constitution or federal law. It exists to protect the president’s exercise of discretion in doing his job, but does not extend to actions taken outside the scope of his lawful duties. Neither the Constitution nor federal law confers any authority on the president over the process of counting or tabulating ballots or certifying an election; this is constitutionally committed to the states.
First Amendment: The First Amendment protects speech, including political speech. However, speech integral to criminal conduct – such as fighting words, threats, and solicitations – are categorically outside of First Amendment protection.
Intent: The factual defense Trump is likely to claim is that he was pressing his good-faith conviction that he had actually won – that he was trying to secure the correct outcome of the election. But a candidate who believes he has won the election does not enjoy any legal protection to commit crimes in furtherance of that belief. Moreover, the January 6th Select Committee’s final report is replete with evidence that Trump was repeatedly told he lost the election and yet engaged in criminal conduct anyway.
Selective/retaliatory prosecution: A claim of selective/retaliatory protection requires showing you were treated differently than similarly situated persons; there is no evidence of that in this case.
All of these defenses should fail as we explain in-depth in our report.
A presidential pardon is irrelevant to Willis’ case because a president’s clemency power only extends to federal offenses. Nor does the governor of Georgia have the power to pardon at the state level, as that power is given to a five-member state board under Georgia’s constitution. Members of the Georgia State Board of Pardons and Paroles are appointed by the governor and confirmed by the Senate in staggered renewable 7 year terms. A clemency petition must be submitted to them in writing stating the grounds upon which the request is made. Under Georgia law, the Board may only grant a pardon in two instances: (1) if a person proves their innocence of the crime for which they have been convicted under Georgia law; or (2) if a person has completed their full sentence, including any probated sentence and fines, and is also free of supervision and/or criminal involvement for at least five consecutive years. A pardon or clemency can only be issued by a majority vote of the board.
In the coming weeks, Donald Trump is very likely to be charged with multiple crimes in Georgia. While he may try to raise specious defenses, like claims of his immunity or bias on the part of prosecutors, they are unlikely to – and should not – succeed. No one is above the law, not even Donald Trump.
Publication of special grand jury report
On February 13, 2023, Judge McBurney ruled that the introduction, conclusion, and section VIII of the special grand jury’s report related to the concern that witnesses may have lied under oath, be made public on February 16, 2023, albeit possibly with redactions. He also stated that the report includes recommendations for who and what should be charged, but ruled that those parts would remain sealed until the District Attorney completes the investigation.
Judge McBurney reasoned that releasing the full report could violate the due process rights of potential future defendants because grand juries only conduct a “one-sided exploration” of what occurred since future defendants cannot present any exculpatory evidence to a grand jury. But he found that because there is a compelling public interest in the proceedings, transparency requires the release of portions of the report prior to the completion of the District Attorney’s investigation.
“Removal” is the process of transferring a case from state court to federal court. In criminal cases, 28 U.S.C. § 1442(a) governs removal by federal officers. It allows a criminal defendant who is also a federal official to request that the case be moved to federal court if the prosecution is “for or relating to any act under color of such office.” Under § 1442(a), removal to federal court is allowed if the defendant is (1) an officer of the United States, and (2) has raised a “colorable federal defense”. To remove, the defendant must file a notice of removal in the federal district court that has jurisdiction over the removal question. The prosecution then has an option to file a motion to remand, which requests that the case be removed back to the state court.
If indicted, Trump will likely try to remove his case to federal court. Strategically, Trump could face a more sympathetic jury pool in federal court as opposed to state court. However, Trump’s legal arguments for removal are tenuous, especially as it pertains to the “colorable federal defense” prong of the standard. Trump’s “colorable” federal defense would likely be the immunity claim discussed above. However, this claim should fail because neither the Constitution nor any applicable federal statute vests the president with any authority or responsibility to interfere with the administration of an election in Georgia.
For a more complete understanding of these legal charges and the potential defenses that Donald Trump may raise, please see CREW’s report written with the Brookings Institution.