On the Docket: Atlanta v. Trumpworld
“Eighteen months into a criminal investigation of election interference by Donald J. Trump and his allies, a Georgia prosecutor is beginning to show the broad contours of her inquiry.
ATLANTA — The criminal investigation into efforts by former President Donald J. Trump and his allies to overturn his election loss in Georgia has begun to entangle, in one way or another, an expanding assemblage of characters:
A United States senator. A congressman. A local Cadillac dealer. A high school economics teacher. The chairman of the state Republican Party. The Republican candidate for lieutenant governor. Six lawyers aiding Mr. Trump, including a former New York City mayor. The former president himself. And a woman who has identified herself as a publicist for the rapper Kanye West.
Fani T. Willis, the Atlanta area district attorney, has been leading the investigation since early last year. But it is only this month, with a flurry of subpoenas and target letters, as well as court documents that illuminate some of the closed proceedings of a special grand jury, that the inquiry’s sprawling contours have emerged.
For legal experts, that sprawl is a sign that Ms. Willis is doing what she has indicated all along: building the framework for a broad case that could target multiple defendants with charges of conspiracy to commit election fraud, or racketeering-related charges for engaging in a coordinated scheme to undermine the election.
“All of these people are from very disparate places in life,” Anthony Michael Kreis, a constitutional law professor at Georgia State University, said of the known witnesses and targets. “The fact that they’re all being brought together really suggests she’s building this broader case for conspiracy.”
What happened in Georgia was not altogether singular. The House committee investigating the Jan. 6, 2021, attack on the Capitol has put on display how Mr. Trump and his allies sought to subvert the election results in several crucial states, including by creating slates of fake pro-Trump electors. Yet even as many Democrats lament that the Justice Department is moving too slowly in its inquiry, the local Georgia prosecutor has been pursuing a quickening case that could pose the most immediate legal peril for the former president and his associates.
Whether Mr. Trump will ultimately be targeted for indictment remains unclear. But the David-before-Goliath dynamic may in part reflect that Ms. Willis’s legal decision-making is less encumbered than that of federal officials in Washington by the vast political and societal weight of prosecuting a former president, especially in a bitterly fissured country.
But some key differences in Georgia law may also make the path to prosecution easier than in federal courts. And there was the signal event that drew attention to Mr. Trump’s conduct in Georgia: his call to the secretary of state, Brad Raffensperger, whose office, in Ms. Willis’s Fulton County, recorded the president imploring him to “find” the 11,780 votes needed to reverse his defeat.
Mr. Trump’s staff did not comment, nor did his local counsel. When Ms. Willis opened the inquiry in February 2021, a Trump spokesman described it as “simply the Democrats’ latest attempt to score political points by continuing their witch hunt against President Trump.” Lawyers for 11 of the 16 Trump electors, Kimberly Bourroughs Debrow and Holly A. Pierson, accused Ms. Willis of “misusing the grand jury process to harass, embarrass and attempt to intimidate the nominee electors, not to investigate their conduct.”
Last year, Ms. Willis told The New York Times that racketeering charges could be in play. Whenever people “hear the word ‘racketeering,’ they think of ‘The Godfather,’” she said, before explaining that charges under Georgia’s version of the federal Racketeer Influenced and Corrupt Organizations Act could apply in any number of realms where corrupt enterprises are operating. “If you have various overt acts for an illegal purpose, I think you can — you may — get there,” she said.
The Trump Investigations
Numerous inquiries. Since Donald J. Trump left office, the former president has been facing civil and criminal investigations across the country into his business dealings and political activities. Here is a look at the notable inquiries:
Ms. Willis, 51, a first-term Democrat, has long made use of racketeering charges and has hired a leading expert in the state’s racketeering laws. In 2014, as a deputy in the office, she prosecuted public schoolteachers who had taken part in a cheating scandal, and in May, she secured an indictment charging the rapper Young Thug and 27 associates with conspiracy to commit racketeering, identifying them as a criminal street gang.
Observers believe a similar fate awaits some of the myriad Trump loyalists in and out of Georgia who may have had a hand in trying to subvert legitimate election results. She has already informed the head of the Georgia Republican Party that he is a target of the investigation, along with the party’s treasurer and 14 other Georgians who were on the slate of bogus Trump electors, including the car dealer and the economics teacher.
A number of people closer to Mr. Trump have also been drawn into the case. His personal lawyer, the former New York mayor Rudolph W. Giuliani, has been ordered by a judge to testify on Aug. 9. Lawyers for Senator Lindsey Graham of South Carolina are fighting his subpoena to testify, as are lawyers for Representative Jody Hice, a stalwart Trump ally who led efforts in the House in January 2021 to stop the certification of votes. Ms. Willis is also seeking to compel testimony from John Eastman, an architect of the legal strategy to keep Mr. Trump in power, as well as other lawyers — Kenneth Chesebro, Jacki Pick Deason, Jenna Ellis and Cleta Mitchell — who played critical roles in the effort.
Ms. Willis’s office has homed in on several investigative strands:
Calls made by Mr. Trump and his allies to apply direct pressure to state officials. The pressure campaign started in the days after the election, when Mr. Graham called Mr. Raffensperger to inquire about ways to help Mr. Trump by invalidating certain mail-in votes. And it culminated with Mr. Trump’s call to Mr. Raffensperger four days before the attack on the Capitol.
The secretive plot to send a fake slate of Georgia electors to Washington. While both parties draw up slates of presidential electors in case their candidate prevails, four of those Republican electors in Georgia dropped out after the election. Nonetheless, leading Republican operatives in the state assembled a new slate of Trump electors to disrupt the transfer of power during Congress’s certification of the vote.
Numerous misstatements made by Mr. Giuliani and others before the state legislature during two hearings in December 2020. Mr. Giuliani’s conduct in Georgia was already laid bare by a New York State appellate court last year when it suspended his law license. The court’s 33-page report mentioned Georgia 35 times and described “numerous false and misleading statements regarding the Georgia presidential election results,” including false claims that tens of thousands of underage teenagers had voted illegally in Georgia and that voting machines had altered the outcome.
Three witnesses who have appeared before the grand jury told The Times that the Giuliani hearings were of particular interest. “There was a seven-hour video,” Jennifer Jordan, a Democratic state senator and one of the witnesses, said of a Giuliani hearing before a Georgia Senate committee, adding, “I’m pretty sure the grand jury has viewed the whole thing in its entirety.”
Prosecutors have even sought testimony from Trevian Kutti, a Chicago-based publicist who says she worked for Mr. West, the rapper and Trump admirer who briefly ran his own 2020 campaign for president. Ms. Kutti, who had previously been a celebrity stylist and Illinois cannabis lobbyist, traveled to the Atlanta area a few weeks after the vote and visited Ruby Freeman, an obscure election worker whose account of how Mr. Trump had falsely accused her of counting bogus ballots was featured at one of the House committee’s public hearings.
Ms. Kutti, in an incident first reported by Reuters, initially presented herself to Ms. Freeman as a “crisis manager” connected to unnamed powerful people and offered vague assurances of help. But in a court filing, prosecutors said she then warned Ms. Freeman that “her liberty was in jeopardy” and tried to “pressure Freeman into falsely confessing to participation in election fraud.”
The case accelerated dramatically this month, first with news that Ms. Willis sought to compel seven of Mr. Trump’s lawyers and advisers to testify in the case, including Mr. Eastman, Ms. Ellis, Mr. Giuliani and Mr. Graham. Then court filings revealed that all 16 of the fake electors had been told they were targets of the investigation and could face charges — a step many observers saw as an opening gambit that could lead to similar action against more prominent Trump allies.
Ms. Debrow and Ms. Pierson, in a filing, said that a local prosecutor had no jurisdiction to determine which federal electors were fake and which were real. But Gwendolyn Keyes Fleming, a former district attorney of neighboring DeKalb County, noted that the Trump electors had met at the State Capitol, which is in Fulton, adding that Ms. Willis “has jurisdiction over all crimes or alleged crimes that happened within Fulton County.”
Norman Eisen, special counsel to the House Judiciary Committee during the first Trump impeachment, called the notion that Ms. Willis lacked jurisdiction “comical.”
“It’s a fundamental precept of American law and election procedure that elections are primarily entrusted to the states and the locality. And that’s true both for administration questions and for enforcement ones.”
In a legal filing, the electors’ lawyers likened their clients’ actions to those of electors in Hawaii during the 1960 presidential election, when Richard M. Nixon beat John F. Kennedy in the initial voting by a mere 141 votes, but Kennedy prevailed after a court-ordered recount. As this unfolded, Kennedy electors submitted their votes (as did Nixon electors) before the recount was finished. “Appropriately, no one suggested that they were criminals,” Ms. Debrow and Ms. Pierson wrote.
But when Kennedy and Nixon electors cast their votes on Dec. 19, 1960, there was a court-ordered recount still underway, and the Hawaiian governor later directed the winning Kennedy slate to be recognized. By contrast, 60 years later in Georgia, the Trump electors signed their certificate on Dec. 14, a week after the results were recertified. By then, four of the original Georgia Republican electors had bowed out and had to be replaced, with one expressing reservations about “political gamesmanship.”
“In the Hawaiian case, it was the appropriate certifying authority, the governor of the State of Hawaii, who certified the Kennedy electors,” said James A. Gardner, a professor at the University at Buffalo School of Law. “These people we’re talking about in Georgia were not certified by any executive authority,” he said, adding that “in 1960, none of this occurred in the context of a fairly widespread attempt by a sitting president to conduct a self-coup.”
Further legal pushback came on Thursday as a lawyer for state Senator Burt Jones, one of the pro-Trump electors and the Republican nominee for lieutenant governor, sought to have Ms. Willis disqualified. While such strategies have failed before in Trump-related cases, Robert C. I. McBurney, the Fulton County Superior Court judge handling the case, criticized Ms. Willis for her frequent TV appearances and for holding a fund-raiser for a Democrat running against Mr. Jones, saying “the optics are horrific” — though the fund-raiser took place during a runoff in the Democratic primary.
The matter of the electors may be just one element among many in a broader conspiracy.
These include Mr. Graham’s call, a few days after the election, to Mr. Raffensperger. Lawyers for Mr. Graham have said he has been informed by prosecutors that he is a witness, not a target. But prosecutors are likely to be interested in whether he coordinated with other pro-Trump figures.
Prosecutors are probably asking similar questions about Mr. Giuliani’s decision to appear before the two legislative committees. Less clear is what kinds of questions they have for Mr. Hice, and the extent to which the grand jury will focus on the postelection acts of the former White House chief of staff Mark Meadows, who visited Georgia to try to observe a ballot audit and met with an elections investigator in the secretary of state’s office.
Mr. Trump called the elections investigator, Frances Watson, after Mr. Meadows met with her, telling her that Georgians knew he had actually won by “hundreds of thousands of votes.” At one point, Mr. Trump also called Gov. Brian Kemp, a Republican, urging him to convene the legislature in a special session where they could appoint pro-Trump electors. Mr. Kemp is scheduled to testify on July 25 in a recorded video statement.
Ms. Willis is weighing whether to subpoena Mr. Trump, a person familiar with the case said, but the biggest looming questions are whether the former president will be designated as a target and eventually indicted. Mr. Eisen and Ms. Fleming co-authored a 114-page Brookings Institution analysis of the Georgia case that found Mr. Trump “at substantial risk of possible state charges predicated on multiple crimes.”
Of course, there will be obstacles. Should the case progress in his direction, Mr. Trump is expected to go to federal court to try to assert executive privilege.
Legal experts see fewer impediments for Ms. Willis to act than the institutional constraints faced by Merrick Garland, the United States attorney general.
“It’s a higher bar to say a former president should be indicted at the federal level than you have at the state level,” said Jonathan Shaub, an assistant law professor at the University of Kentucky’s Rosenberg College of Law who once worked in the Justice Department’s Office of Legal Counsel. “Whatever Garland does here, he’s setting a precedent.”
Mr. Eisen said that Georgia law was more narrowly applicable to the conduct of the former president, notably through statutes like “Criminal solicitation to commit election fraud.” Additionally, the state’s racketeering laws are more expansive than the federal version, Mr. Eisen said, with “a much broader set of predicate acts” that “gives a prosecutor more leeway than a federal prosecutor charging RICO would have.”
Given Ms. Willis’s history, Mr. Eisen said, “she’s clearly going to charge this as a RICO case.” If she does, he added, it “is very likely to be one of the most important criminal RICO cases ever brought in United States history.”
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