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How the US state of Georgia became ground zero for Donald Trump’s legal woes

PALM BEACH, FLORIDA - NOVEMBER 15: Former U.S. President Donald Trump speaks during an event at his Mar-a-Lago home on November 15, 2022 in Palm Beach, Florida. Trump announced that he was seeking another term in office and officially launched his 2024 presidential campaign.   Joe Raedle/Getty Images/AFP (Photo by JOE RAEDLE / GETTY IMAGES NORTH AMERICA / Getty Images via AFP)

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A Georgia prosecutor investigating former president Donald Trump’s push to change the 2020 election results says indictment “decisions are imminent”.
Photo: AFP

It has been more than two months since Donald Trump formally announced his White House comeback bid in Palm Beach, Florida.

But the 76-year-old had so far kept a low profile compared to his previous presidential campaigns.

In lieu of helicopter rides for children and audacious mega-rallies, Trump held two traditional campaign events in early voting states with hundreds – rather than thousands – of attendees.

While the former president had so far remained the frontrunner for the Republican nomination, his fixation on the 2020 election had turned off some deep-pocketed donors.

And his efforts to subvert the transfer of power after losing that election have been at the centre of two of the four major criminal investigations looming over his candidacy.

Former US President Donald Trump arrives on stage during an event at his Mar-a-Lago home on 15 November, 2022 in Palm Beach, Florida. Trump announced that he was seeking another term in office and officially launched his 2024 presidential campaign.

Former president Donald Trump is increasingly isolated in his third bid for the White House.
Photo: AFP/ Joe Raedle

Alongside an investigation into Trump’s alleged mishandling of classified materials, a special counsel at the Department of Justice (DOJ) was examining his role in the 6 January attack on the US Capitol.

But it could be his efforts to change the outcome of the election in Georgia, the swing state that flipped for President Joe Biden, that could prove the more pressing legal risk to his campaign.

The state prosecutor overseeing the two-year probe into possible election crimes said charges were “imminent” after a special grand jury wrapped up its investigation.

And legal experts had said any indictments were likely to be aimed squarely at Trump and his allies.

The phone call that triggered the Georgia probe

Fani Willis had yet to spend a day in her office as district attorney of Fulton County when Trump made the phone call at the centre of the investigation that had made her a national figure in the United States.

Weeks after losing the 2020 presidential election, the then-president called fellow Republican Brad Raffensperger, Georgia’s secretary of state, to push him to “find” enough votes to win the state.

“I just want to find 11,780 votes, which is one more than we have,” Trump said during the 2 January, 2021, call, which was recorded by Raffensperger’s office.

The tirade became the focal point of the 6 January committee’s investigation into Trump’s efforts to strongarm Georgia election officials into reversing his loss in the state.

As votes were being processed in the days after the election, Trump had bombarded them with angry tweets alleging voter fraud without evidence.

“Everyone knows that we won the state,” he said on Twitter.

Meanwhile, his campaign team and allies were frantically filing state and federal lawsuits challenging his loss.

When two recounts affirmed Joe Biden’s narrow win by a margin of roughly 12,000 votes, Trump’s pressure campaign only escalated.

That December, his personal lawyer Rudy Giuliani appeared before Georgia’s state legislature, falsely claiming the state’s voting machines were corrupt and tens of thousands of absentee ballots had been illegally cast and counted.

Giuliani also told lawmakers to appoint a slate of fake electors friendly to Trump to draft and sign false documents declaring him the winner – an idea the state’s Republican governor Brian Kemp rejected as “unconstitutional”.

Another of Trump’s lawyers, John Eastman, had already prepared a memo justifying the strategy, which targeted seven battleground states including Georgia, Arizona, Michigan and Pennsylvania.

The memo was circulated to the White House, Giuliani’s legal team, and state legislators around the country.

It laid the groundwork for the plan to have then-vice-president Mike Pence refuse to certify the election results in Congress on 6 January, which was later dismissed by a federal judge as “a coup in search of a legal theory”.

During the call to Raffensperger, Trump cited several of the same election fraud conspiracy theories, which by then had been debunked by the DOJ.

He also made what the 6 January committee described as a “thinly veiled threat” to Raffensperger, who had refused the request to “find” votes.

That came on the heels of several other verbal attacks on public servants and election workers in Georgia by the fuming ousted president.

Gabriel Sterling, a Republican election official, had previously called on Trump to lower the temperature.

“It has to stop,” he said in a public statement.

“Someone’s going to get hurt. Someone’s going to get shot. Someone’s going to get killed.”

Raffensperger later told the 6 January committee his email and mobile phone number were circulated online, which led to him receiving a torrent of abusive messages from across the country.

His wife of 40 years was also doxxed, he said. She received sexualised threats.

(Left to right) Rusty Bowers, Arizona House Speaker, Brad Raffensperger, Georgia Secretary of State and Gabriel Sterling, Georgia Secretary of State Chief Operating Officer, testify during the fourth hearing on the 6 January investigation in the Cannon House Office Building on 21 June, 2022 in Washington, DC.

Georgia’s secretary of state Brad Raffensperger told the 6 January committee he felt personally threatened by the former president.
Photo: AFP/ Pool – Michael Reynolds

Raffensperger told the committee he felt personally threatened by Trump.

“What I knew is that we didn’t have any votes to find,” he said.

“We had continued to look. We investigated. I could have shared the numbers with you. There were no votes to find.”

Why all eyes are on Fani Willis

The now-infamous call became the springboard for the Fulton County District Attorney’s office to begin its investigation.

Fani Willis, a Democrat, was the first woman to hold the role after campaigning on a promise to restore integrity and winning the elected office.

Fulton County district attorney Fani Willis is to decide whether to pursue charges against Donald Trump in Georgia.

Fulton County district attorney Fani Willis is to decide whether to pursue charges against Donald Trump in Georgia.
Photo: Fani Willis/ Facebook

By February 2021, she was already firing off letters to Georgia officials asking them to preserve documents pertaining to the November 2020 election.

“Our vote is as important as anyone else,” Willis later told CNN.

“If someone takes that away or violates it in a way that is criminal, because I sit here in this jurisdiction it’s my responsibility.”

Willis requested a special grand jury to investigate the case, which since June 2022 had expanded well beyond Trump to examine the fake electors scheme and threats to election workers.

“A special purpose grand jury is essentially an investigatory body,” said Anthony Kreis, an assistant professor in law at Georgia State University.

“It’s a body of everyday citizens from Fulton County who are asked to spend a considerable amount of time and focus on a particular issue that may or may not result in criminal indictments.”

Whereas a prosecutor sought indictments from a regular grand jury, a special grand jury had no indictment powers and was used to unearth evidence.

Prosecutors were among the most powerful figures in US courts, deciding whether to bring charges, which charges to bring, and whether to negotiate plea bargains.

District attorneys were the top prosecutors in their states.

Such roles had become increasingly politicised in recent years, as several so-called progressive prosecutors, focused on reform, had won office.

Ahead of his 2022 campaign launch, Trump railed against them, labelling several high-profile investigations – including parallel criminal and civil probes into the Trump Organisation in New York – a “hoax”.

Nicholas Gravante, lawyer for Former Trump Organization executive Allen Weisselberg, leaves Manhattan Criminal Court after his client's sentencing hearing on 10 January 2023 in New York City. Weisselberg, is facing a five-month prison sentence after pleading guilty to 15 state crimes last year and agreeing to testify against the Trump Organization.

Nicholas Gravante, lawyer for Former Trump Organisation executive Allen Weisselberg, who pleaded guilty to 15 state crimes last year and agreed to testify against the Trump Organisation. Trump labelled prosecutors investigating the Trump Organisation in New York “vicious, horrible people”.
Photo: Getty Images via AFP

“These prosecutors are vicious, horrible people, they’re racists and they’re very sick, they’re mentally sick,” he said, referring to New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg, both of whom are black.

Trump also called other black prosecutors, including Willis, “racist”.

According to Kreis, her decision to request a special grand jury may be in part to protect her from accusations of political bias.

“Fani Willis is a Democrat. And she’s investigating Republicans,” said Kreis.

“And so having a kind of neutral body of everyday citizens – bus drivers and teachers and doctors and nurses and lawyers and folks from all walks of life – looking at this and making recommendations, I think, is really important.

“Because it gives her an extra layer of insulation from any allegation of being partisan-ly motivated or doing something that’s less than on the up and up.”

An Atlanta judge will soon decide if the special grand jury’s final report should be made public, but Willis had urged him to keep it secret.

“Decisions are imminent,” she told Judge Robert McBurney in a recent hearing at Fulton County Superior Court.

“We want to make sure that everyone is treated fairly, and we think for future defendants to be treated fairly it’s not appropriate at this time to have this report released.”

Kreis said Willis could be stalling, hoping to delay the inevitable political firestorm that could burn her chances of securing criminal indictments against Trump and others.

And it looked like she was nearly ready to make her move.

The path to indictments

A coalition of US media outlets is pushing for the special grand jury’s report to be released, citing the extraordinary public interest in its contents.

Alongside testimony from dozens of witnesses – including Rudy Giuliani and Brad Raffensperger – the findings of the months-long investigation could reveal if the grand jurors believed election crimes occurred.

Attorney for the US President, Rudy Giuliani speaks to the media at a press conference held in the back parking lot of Four Seasons Total Landscaping on 7 November, 2020 in Philadelphia, Pennsylvania.

Rudy Giuliani, Donald Trump’s personal lawyer (shown in 2020), testified before the Georgia special grand jury in August 2022.
Photo: AFP/ Chris McGrath

Experts had also expressed scepticism about the legal underpinnings of Fani Willis’s argument that the report should remain secret.

“My best guess is that [Judge Robert McBurney] will split the baby in this case and he’ll decide that the public does have an interest but great portions of the report should be redacted, or he may tie it to some sort of deadline dealing with the district attorney’s decision to seek indictments or not,” said Michael Moore, a former federal prosecutor now in private practice in Atlanta.

Kreis argued the special grand jury was empanelled in the name of the people of Fulton County and paid for by taxpayers so “there’s a default expectation under state and constitutional law principles, [the report] should be a public document available for the public for public consumption and review”.

Both lawyers said Judge Robert McBurney had a reputation for being both thorough and expeditious – meaning, while he would carefully weigh the pros and cons of releasing the grand juror’s report, his ruling was likely to arrive swiftly.

Regardless, Willis already had access to the troves of evidence and potential theory of crime contained within.

Once she was to land on specific charges and defendants, she would seek an indictment from a regular grand jury, which the district attorney’s office should secure easily.

“There are often … jokes about [regular] grand juries, right, where a prosecutor can walk in and indict a ham sandwich,” Kreis said.

He anticipated it would likely be a matter of weeks, rather than months, until indictments would be announced in Georgia.

The key question, then, was did Willis have enough evidence to indict Trump?

“Absolutely,” said Kreis.

“Law professors and lawyers will often tell you … it depends, right? That’s our favourite answer. But for Donald Trump and his potential liability here, it does not depend.”

Kreis said it should be “patently clear” to anyone who had followed the Georgia probe that there was “considerable evidence” that could leave Trump legally exposed.

“The most damning evidence is, of course, the phone call,” he said.

“Because we have Donald Trump’s voice on tape, where he makes an overt demand to change the tallies of an election, which is a clear violation of Georgia law, provided that he also had … the corrupt intent behind it, that he wasn’t just asking for a charitable recounting of the votes.”

The US House Select Committee to Investigate the 6 January Attack on the US Capitol plays a recording of former President Donald Trump's phone call with Georgia Secretary of State Brad Raffensperger in which Trump said "I need 11,000 votes. Give me a break" in a video shown during a hearing in the Cannon House Office Building. 13/10/22

The now-infamous phone call between Donald Trump and Brad Raffensperger featured heavily in the 6 January committee’s hearings.
Photo: AFP/ pool

The 6 January committee previously found that prior to calling Raffensperger, Trump had been told at least four times the election results were legitimate and there was no evidence of widespread election fraud in Georgia.

“We also know that his legal team knew that those allegations were false,” Kreis said.

What charges could Trump face in Georgia?

According to the Brookings Institution, a think tank based in Washington DC, Trump appeared to be “at substantial risk of prosecution for both election and non-election crimes in violation of Georgia state law”.

Those included solicitation to commit election fraud, intentional interference with performance of election duties, interference with primaries and elections, and conspiracy to commit election fraud.

Brookings also suggests Trump and his cohort could be criminally liable for making false statements, improperly influencing government officials, forgery in the first degree, and criminal solicitation.

The prospect of racketeering charges has also been floated.

Last year, Willis brought a sweeping racketeering indictment against an Atlanta rapper Yung Thug and his Young Slime Life (YSL) syndicate that named at least 28 people.

She could, in theory, use a similar approach to indict multiple defendants for election-related crimes, including Trump allies Rudy Giuliani and John Eastman, and the 16 fake electors – all of whom already received target letters indicating they could face charges.

The legal distinction between conspiracy and racketeering, which was commonly associated with the mafia and criminal street gangs, was that in a conspiracy multiple parties agreed in advance to engage in a criminal act.

In a racketeering scenario, the different actors could be working in tandem without knowing how they fit within a broader scheme like the “spokes of the wheel”, Kreis said.

The tricky task Willis now faced was selecting charges to hold as many parties as possible accountable under the same theory of law, according to Kreis.

“And it can get very complex, it can get very politically sticky,” he said.

“It’s really almost an all-or-nothing proposition.”

Moore argued that while no political figure was above the law, an elected state prosecutor bringing a case against a sitting or former president could set a concerning precedent.

“I would rather see what I would call career prosecutors, who are typically considered to be more apolitical, in the Department of Justice look at this type of case,” he said.

But Kreis objected to the notion a federal court should be the only place for an election-related case, given elections were primarily regulated at the state level.

“I would say if you don’t want to be charged in a Fulton County, Georgia, court for violating Georgia law, don’t come to Georgia and violate our laws,” he said.


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