Fani Willis is about to sue Trump. It looks like this: – CREW

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Fulton District Attorney Fani Willis’ investigation into Donald Trump and his allies’ attempts to overturn the results of Georgia’s 2020 presidential election has been underway for nearly two years and its first indictments is 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 much-needed accountability and show that no one – not even the former president – ​​is above the law.

The special purpose grand jury that began investigating potential criminality in May has completed its investigation and recommended that its report be made public. In 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 file charges, indicating that decisions are may be imminent. Judge Robert McBurney has not yet made a decision about releasing the report.

Since Willis began his investigation, targeted 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 fraudulent electors, who notifying them that they are targets of an investigation. Meanwhile, the special purpose grand jury reportedly heard testimony from key witnesses, including Secretary of State Brad Raffensperger, Trump’s personal attorney Rudy Giuliani, former national security advisor Michael Flynn, Senator Lindsey Graham, former White House aide Cassidy Hutchinson, and former Trump Chief. by 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 that are likely to arise in the near future if Trump and others are indicted. For a more complete understanding of these legal charges and the potential defenses that Donald Trump could raise, please see CREW’s report co-authored with the Brookings Institution.

Possible Crimes Election-related crimes: Soliciting election fraud (Ga. Code Ann. §21-2-604(a)); Willful interference with the 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 through conduct such as Trump calling Secretary of State’s chief investigator Frances Watson, urging her to find of fraud by departing from established audit procedures, he appealed to the Georgia Secretary of State. Brad Raffensperger demands, and at times threatens, that he “finds 11,780 votes,” and setting up a fraudulent electoral process, Trump forces Georgia officials to change the legal results of the 2020 presidential election in Georgia . The full extent of Trump’s actions before and after the election provide a clear and consistent purpose to demand and pressure government officials to overturn the election results.

Non-election 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 allegedly repeatedly lied about the 2020 election to Georgia officials and used deceptive behavior, as well as intimidation and threats, to push them to change the election result. 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 lies about the election. Because the documents signed by the fake voters included falsehoods about their role and authority in the 2020 election, they may have committed first degree perjury and forgery. Moreover, Trump and his allies may be committing criminal solicitation when they solicit behavior from Georgia state officials to change the election results in Trump’s favor.

RICO crimes: Georgia’s RICO Act (Ga. Code Ann. § 16-14-1 et seq.)

The Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act recognizes that if a person’s violations of individual criminal laws are bad, a business that repeatedly violates the law is worse and should be subject to additional punishment

In order to be charged, the law requires a “pattern” of misconduct as demonstrated by violations of two or more specific crimes, including the false statements or improper influence crimes mentioned above. Experts believe RICO charges are a real possibility for Trump based on his repeated calls to election officials, false statements, and alleged coordinated attempts to give of fraudulent electoral certificates.

Upcoming legal issues Imposing a separate grand jury

A special purpose grand jury serves an investigative function and focuses only on one case or issue, unlike a regular grand jury which may 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 inquiry issues and allow a jury to develop a deeper understanding 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 subject to whatever time period is necessary to complete their investigation. Unlike a typical grand jury, a special purpose grand jury cannot return a “true bill” of indictment. However, they can issue public reports after review by a supervising judge. The report may recommend charges for criminal acts discovered during the investigation, but it may not recommend charges against specific persons. The district attorney may pursue indictments of any recommended crimes by a regular grand jury. So, even if the special grand jury makes recommendations in its report, Willis will have to ask the regular grand jury to be indicted. In Fulton County, the regular grand jury is always empaneled and meets on Tuesdays and Fridays.

Right to speedy trial

Defendants in Georgia have a constitutional right and a state right to request 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 arraigned at the next regular court term upon their arrest. In Fulton County, indicted defendants can request speedy trials that begin at the end of the term that follows the two-month period in which they were indicted. Regular grand juries (as opposed to a special grand jury) in Georgia serve for two-month terms. Because of this, most cases are brought at the beginning of a new grand jury term. In this case, charges could be filed in early March, when the next grand jury term begins.

Potential defenses raised by Donald Trump

Trump’s lawyers are likely to argue a variety of defenses that could minimize his conduct or seek to shield it from prosecution. These include the following defenses:

Immunity: Immunity is the contention that Trump is protected as a federal official from violations of the authorities granted to 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 statutory duties. Neither the Constitution nor federal law gives the president any authority over the process of counting or tabulating ballots or certifying an election; it is committed to the constitution in the states.

First Amendment: The First Amendment protects speech, including political speech. However, speech integral to criminal conduct – such as fighting words, threats, and solicitation – is certainly outside the protection of the First Amendment.

Purpose: The factual defense that Trump is likely to claim is that he is pushing his strong belief that he actually won – that he was trying to get the election result right. 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 final report of the January 6th Select Committee is full of evidence that Trump has been repeatedly told that he lost the election and is still engaging in criminal behavior.

Selective/retaliatory prosecution: Claiming selective/retaliatory protection requires showing that you were treated differently than similarly situated people; there is no evidence of that in this case.

All these defenses must fail as we explain in depth in our report.

Sorry

The presidential pardon is not relevant to the Willis case because the president’s clemency power extends only to federal offenses. Georgia’s governor also lacks the power to pardon at the state level, as that power is vested in a five-member state board under the Georgia constitution. Members of the Georgia State Board of Pardons and Paroles are appointed by the governor and confirmed by the Senate to staggered renewable 7-year terms. The clemency petition must be submitted to them in writing stating the grounds on which the request is made. Under Georgia law, the Board can only grant a pardon in two circumstances: (1) if a person proves they are innocent of the crime for which they were convicted under Georgia law; or (2) if a person has completed their entire sentence, including any probated sentence and fines, and has also been free of supervision and/or criminal involvement for at least five consecutive years. A pardon or clemency can only be granted by a majority vote of the board.

In the coming weeks, Donald Trump will likely be charged with multiple crimes in Georgia. While he may try to raise specious defenses, such as claims of his immunity or bias on the part of prosecutors, they probably won’t – and shouldn’t – succeed. No one is above the law, not even Donald Trump.

For a more complete understanding of these legal charges and the potential defenses that Donald Trump could raise, please see CREW’s report co-authored with the Brookings Institution.

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