The Georgia investigation remains Trump’s biggest problem yet
Columnist|
July 6, 2022 at 10:00 a.m. EDT
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Donald
Trump’s greatest criminal vulnerability has always been in Georgia. That’s
where prosecutors are investigating the defeated former president for
pressuring Secretary of State Brad Raffensperger (on tape!) to “find” just
enough votes to swing the state to him and for intimating that the Georgia
official might face criminal peril if he refused.
Unfortunately
for Trump, the risk of prosecution is only getting worse.
The Atlanta Journal-Constitution reported
on Tuesday that a Fulton County, Ga., grand jury issued subpoenas for Trump’s
lawyer Rudy Giuliani as well as “John Eastman, Cleta Mitchell, Kenneth Chesebro
and Jenna Ellis, all of whom advised the Trump campaign on strategies for
overturning Democrat Joe Biden’s wins in Georgia and other swing states.” Sen.
Lindsey O. Graham (R-S.C.), who allegedly made his own inquiries to Georgia
officials, and podcast host Jacki Pick Deason also received subpoenas.
Norman
Eisen, who served as special counsel for the House Judiciary Committee during
Trump’s first impeachment, tells me that this “rogues’ gallery” of lawyers may
provide yet unheard critical evidence. He notes that Fani Willis, the Fulton
County district attorney leading the investigation, seems to have “completed
the in-state portion of her special grand jury investigation" and may now
be moving “to take evidence from those outside of Georgia who may have
participated in the alleged conspiracy targeting Georgia voters and electors.”
She appears to be moving ahead of the House select committee investigating the
Jan. 6, 2021, insurrection and the Justice Department.
In
addition to all these witnesses, Willis and the grand jury will soon have
access to the entire body of information gathered by the Jan. 6 committee,
including prior witness interviews, phone records and live testimony. The
Justice Department will likely share evidence or even provide technical
assistance to local prosecutors. (One basis for the Justice Department to
decline to prosecute an individual is because another jurisdiction may do so;
if so, the feds are obliged to
“coordinate with those authorities as appropriate.”)
“The
suspense is essentially over,” constitutional scholar Laurence Tribe tells me
about the subpoenas. Willis “seems poised to take on the ringleader in a
racketeering scheme to steal Georgia’s 16 electoral votes.” He says that will
likely be “the first indictment of a former president, who committed the crime
on tape for all to hear.”
Giuliani
may be the most at risk after Trump, given that, as the Journal-Constitution
reported, he has made “sensationalist claims and conspiracy theories about tens
of thousands of people voting illegally and rigged voting machines that were
quickly debunked by state authorities or rejected in the courts.” These sorts
of false claims of fraud led a New York court to suspend Giuliani’s
law license.
There
is no guarantee these figures will testify, since many likely have a Fifth
Amendment claim against self-incrimination. Some may also try to invoke
attorney-client privilege, though federal District Court Judge David Carter has
already ruled in a related case that Eastman had no such privilege
because of the fraud-crime exception, requiring Eastman to provide documents to
the Jan. 6 committee
This
tranche of subpoenas marks an ominous turn for Trump. Leah Litman, a professor
at University of Michigan Law School, tells me that “the subpoenas confirm that
people understand what the Jan. 6 Committee hearings have revealed: The effort
to overturn the election was a coordinated campaign that included high-level
Republican officials.”
She
adds, “It is easy to dismiss the mobster-like phone calls and insane claims of
missing ballots as evidence of bumbling wannabe autocrats or mobsters. But
failed coups look silly until they succeed.”
Willis
has several legal theories to pursue against Trump and his cronies, including
criminal solicitation to commit election fraud, conspiracy to commit election
fraud and intentional interference with performance of election duties. If the
district attorney can show “repeated violations of law by an enterprise” (e.g.,
the Trump campaign), prosecution under the state racketeering statute might
also be possible.
Given
the finite set of facts and easy-to-understand statutes, the pack of witnesses
who might cooperate and a taped recording (hardly ever
available to prosecutors), it may well be easier and certainly quicker to
bring discrete state charges against Trump than it would be to present the
entire coup plot in federal court months from now. (Attorney General Merrick
Garland can continue to anguish over the prospect of indicting a former
president and later bring federal charges concerning other aspects of the coup
attempt.)
At the
very least, Willis’s fast-developing investigation underscores that, regardless
of whether Trump truly believed he won the election, he was not allowed to
pressure state officials to “find 11,780 votes” that did not exist. That is why
Trump is at serious risk in Georgia — and perhaps in other states
where he allegedly engaged in similar conduct.