The clock is ticking for former President Donald Trump and his allies in Georgia, where they could face criminal charges for allegedly trying to overturn the 2020 election.
A grand jury, impaneled last week, is weighing evidence against them, and Fulton County District Attorney Fani Willis, who is leading the investigation, is expected to announce charges by mid-August.
Trump has already been indicted twice in recent months, in New York for a hush money payment to an adult film performer in 2016, and in Florida for keeping classified government documents after leaving office.
But the Georgia case is different. It targets not only Trump but also his lawyers and local political activists.
“I expect Donald Trump to be indicted,” said Anthony Michael Kreis, a law professor at Georgia State University who has been closely following the case.
“The bigger question is, who else gets indicted with him or who doesn't get indicted alongside him? And whether that be people like [former Trump lawyer] Rudy Giuliani or [former Trump campaign legal adviser] John Eastman and folks of that nature.”
Trump and his allies have dismissed the investigation as a “witch hunt” led by a progressive prosecutor. Willis, a Democrat, was elected as the Fulton County district attorney in November 2020.
In addition to the Georgia case, special counsel Jack Smith is conducting a federal investigation of post-election actions by Trump and others prior to the January 6, 2021, attack on the U.S. Capitol. Trump has said that he is a target of that investigation and could soon be indicted.
In short order, Trump could be fighting four criminal cases as he seeks the Republican nomination for the 2024 presidential election.
The background
In America’s indirect system of presidential election, voters in each of the 50 states pick electors who pledge to vote for a specific candidate. A candidate needs at least 270 electors to become president. Congress counts and certifies their votes.
Trump and his allies claimed the election was rigged after he lost the popular vote to Democratic nominee Joe Biden.
They then allegedly pressured election officials in seven battleground states to change the official results and organized alternate electors to declare Trump the winner.
The Fulton County investigation is looking into those two overlapping efforts.
A key piece of evidence in the case is a January 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger.
In the now-infamous call, Trump asked Raffensperger, a Republican, to “find” enough votes to overturn his loss to Biden.
“I just want to find 11,780 votes, which is one more than we have,” Trump said.
He also issued what Raffensperger took as a “threat,” telling Raffensperger and his attorney they could face criminal prosecution for not “reporting” fraud in Georgia.
The call came after Georgia officials had recounted and certified the vote. But it wasn’t Trump’s only outreach to a top Georgia official. He also called Governor Brian Kemp, urging him to convene a special session of the state legislature to investigate election fraud.
Potentially pertinent to the investigation, Trump and his allies, including Giuliani, singled out two Fulton County election workers, accusing them of changing the vote for Biden. The false accusation led to threats against the women by hundreds of Trump supporters, congressional investigators found. In a court filing this week, Giuliani said he did not dispute that some of his statements about the women were "false."
The investigation
Willis announced her investigation in February 2021, shortly after Trump’s exit from office. She said she was investigating “attempts to influence” the election, citing possible crimes such as solicitation of election fraud.
To gather evidence in the case, Willis convened a special purpose grand jury last year, which heard testimony from 75 witnesses, including Trump lawyers and associates. It issued a final report and charging recommendations, which have not been made public, in January.
But the special purpose grand jury lacks the power to issue an indictment. So last week, Willis formed a regular grand jury for that purpose.
Potential charges
When Willis announced the investigation, she cited a host of potential violations she was seeking to examine: solicitation of election fraud; making false statements to state and local governmental bodies; conspiracy; racketeering; violation of oath of office; and any involvement in violence or threats related to the election’s administration.
Willis has been tight-lipped about the charges she’ll pursue. But legal experts say she could follow one of two paths:
Trump and others could be indicted on multiple charges of election fraud and intimidation. These could encompass asking officials to change votes and intimidating election workers.
Alternatively, prosecutors could pursue a racketeering indictment, accusing Trump and his allies of engaging in a “criminal enterprise” to overthrow the election in Georgia, Kreis said.
A racketeering conviction carries a sentence of five to 20 years in prison, much more than election fraud crimes.
The potential defendants
Nearly 20 people linked to Trump’s 2020 campaign have reportedly been notified that they’re under investigation.
They include Georgia's 16 “alternate electors,” led by former Georgia GOP Chairman David Shafer, who allegedly orchestrated the scheme.
At least eight of the electors have received immunity from prosecution in exchange for testimony.
Giuliani, a key player in the effort, is also a target, his lawyer confirmed last year.
Others in Willis’ sights include Mark Meadows, Trump’s former White House chief of staff, who joined the call with Georgia election officials, and Jeffrey Clark, a former Justice Department official who drafted an unauthorized letter to Georgia officials falsely claiming the Justice Department had “identified serious concerns” about the election outcome.
In addition, Willis is reportedly investigating the conduct of several former Trump lawyers, including John Eastman and Cleta Mitchell.
All have denied any wrongdoing in Georgia.
It is not clear who will face charges. In an interview with NBC News in February, Emily Kohrs, who served as the forewoman on the special purpose grand jury, said the panel had recommended charges against more than a dozen people.
Trump’s defense
Trump’s defense is likely to hinge on intent, a key factor in proving election fraud and other potential charges.
The phone call to Raffensperger, he could argue, was just a sincere effort to advocate for election integrity, not fraud or intimidation.
“I think the major argument that he will make is that he was not engaging in any attempt to defraud anybody, that there were serious questions being raised about how the election was conducted in Georgia and in several other states, and that he was fighting those charges in court using lawyers and the legal process,” said John Malcolm, senior legal fellow at the conservative Heritage Foundation.
But prosecutors could counter that the Justice Department and others had told Trump there was no widespread fraud, yet he kept lying about it and pushing for reversal.
“His intent to do something unlawful can be discerned by his willful ignorance and his willful blindness to the truth and his refusal to accept the truth,” Kreis said.
As for the lawyers and the electors, they have their own defenses.
The lawyers could argue they were just giving legal advice, which is not a crime even if wrong, according to Malcolm.
“With respect to the lawyers who may be involved, it is extremely dangerous to criminalize legal advice,” Malcolm said.
The electors have called their votes “contingent” and said they did nothing illegal.
Shafer, the former GOP chair, has defended his actions by citing a similar scenario in Hawaii’s close 1960 presidential election.
But some legal experts question the comparison, noting there was an actual legal dispute when the two parties sent rival slates to Washington.
