“If there were a textbook (example of) how to commit criminal election fraud, this would be it,” said Atlanta attorney David Walbert, who has represented Fulton County and the state of Georgia in several elections and redistricting cases.
Longtime criminal defense attorney Don Samuel believes the matter isn’t cut-and-dried.
“You’ve got to prove not only that he encouraged the secretary of state to commit a crime, but that he did so willfully and aware that what he was doing was illegal,” said Samuel, whose high-profile clients have included football stars Ray Lewis and Ben Roethlisberger and attorney Claud “Tex” McIver. That “is kind of an uphill battle, it seems to me, when you’re surrounded by lawyers when you’re making the call.”
Willis, an experienced prosecutor admired even by courtroom adversaries, said during a recent interview that she has no choice but to investigate.
“Nobody is above the law,” she said.
The investigation begins
Willis hasn’t said exactly what her prosecutors seek, but she sent recent letters to Gov. Brian Kemp, Raffensperger and other state officials last month directing them to preserve documents.
She indicated she’s investigating several state crimes, including solicitation of election fraud, making false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and involvement in violence or threats related to the election’s administration.
Racketeering laws are a preferred legal avenue for prosecutors going after the Mafia and other forms of organized crime. Willis used state RICO statutes in 2014 to secure guilty pleas from teachers and administrators involved in the Atlanta Public Schools cheating scandal.
A RICO case requires prosecutors show numerous criminal acts took place to achieve the same goal. Courtroom veterans were divided on whether the law applies here — and whether using RICO could aid or harm Willis’ efforts.
RICO “always just adds burdens to the prosecution’s case,” said Samuel. “If in fact they’re going to try and show that individual acts of election fraud occurred, why complicate the matter by going with a RICO case?”
Georgia State University law professor Clark Cunningham believes Willis has the makings of a “pretty compelling narrative of a conspiracy” that sought to prevent state electors from casting their votes for Biden.
Cunningham said the greatest risk may belong to Trump’s personal lawyer, Rudy Giuliani, whose testimony before the Georgia Senate Judiciary Committee included debunked claims of machines flipping votes and mail-in ballot fraud. One of Willis’ letters announcing her investigation was sent to Lt. Gov. Geoff Duncan, who presides over the Senate. Cunningham said that’s a clear indication Giuliani’s testimony is under scrutiny.
“There is a plausible narrative that Giuliani is the mastermind and Trump just followed his lead,” he said.
A RICO conviction in Georgia carries a five- to 20-year jail sentence. A first-degree conviction of criminal solicitation to commit election fraud carries one to three years’ imprisonment.
Typically a grand jury meets, listens to a 20-minute or so overview from a prosecutor on the merits of their case and, almost always, issues an indictment. Samuel said Willis is likely to follow a federal model, where a grand jury will be impaneled for several months, meeting weekly to hear subpoenas for evidence.
John Banzhaf III, a professor at George Washington University’s law school, said contemporaneous notes taken from any of the people on the Trump-Raffensperger call and a separate conversation between the secretary of state and Trump ally U.S. Sen. Lindsey Graham (R-S.C.), could emerge as crucial evidence.
“We consider something that somebody said at the time that something happened much more important than what they might say a week, a month or longer after they’ve had time to think it over,” said Banzhaf, who filed complaints asking Willis, the secretary of state’s office and two other state entities to investigate the Trump-Raffensperger call last month.
Willis will also likely seek evidence that can further flesh out the context surrounding Trump’s call to Raffensperger, said Noah Bookbinder, a former federal corruption prosecutor and president of Citizens for Responsibility and Ethics, a Washington-based ethics watchdog group.
“What else was being written and said that would have affected the way those words came across to Secretary Raffensperger and his counsel and would help a judge and a jury understand what President Trump meant when he said those things?” said Bookbinder, whose organization sent a criminal complaint to Willis and the acting U.S. attorney general last month after the Trump-Raffensperger call.
Trump’s lawyers are expected to cite executive and attorney-client privilege, which could restrict the kinds of evidence that can be gathered and used. Many legal experts believe that executive privilege has expired now that Trump is no longer in the White House.
“If anything, his duties as president would have been to properly protect and administer the election law of the United States,” Bookbinder said. “What he’s doing here is the opposite. He’s trying to overturn an election.”
Former DeKalb County District Attorney Robert James said Willis will be under immense pressure to “get this right.”
“You don’t want another Ray Lewis,” he said, referring to disastrous prosecution of the Baltimore Ravens linebacker by Willis’ predecessor, Paul Howard. Lewis pleaded guilty to obstruction, a misdemeanor. Two other defendants from the 2000 double murder were acquitted. “People don’t want to see their DA being embarrassed on the national stage.”
Even if Willis makes a compelling case, James said, “there will be a lot of people who won’t believe the president did anything wrong.”
An unprecedented case
Willis’ investigation runs parallel to state and local probes in New York focusing on Trump’s business dealings.
In 2019, the New York Attorney General’s office launched a civil inquiry to examine the Trump Organization’s finances and whether it committed real estate fraud. The former president and members of his family are also under criminal investigation by Manhattan DA Cyrus Vance Jr. for potential bank, insurance and tax fraud.
After fighting with Trump’s lawyers for 18 months to gain access to Trump’s tax returns, Vance won a major victory at the Supreme Court last week when justices forced the former president’s accountants to hand over eight years’ worth of records.
No former president has been jailed for a crime, and election fraud cases are rarely prosecuted in Georgia.
Most have centered on more minor offenses, such as helping people vote when they’re not supposed to or for registering people improperly.
Still, observers say Willis has a duty to act.
“If I’m going to prosecute a 17-year-old kid with three crack rocks in his pocket, you can bet your rear end I’m going to prosecute someone who should know better,” James said. “If evidence is there and she doesn’t pursue it, there’s no such thing as equal justice in Fulton County.”
Bookbinder put the question in more sweeping terms.
“This issue really cuts to the core of the survival of our democracy,” he said. “When we have the American people vote in an election, is that result going to stand, or can a powerful political leader cut in and get it changed if they don’t like the result?”
THE STORY SO FAR
Fulton County DA Fani Willis announced on Feb. 10 that her office was launching a wide-ranging criminal investigation into former President Donald Trump.
The probe is centered on Trump’s Jan. 2 phone call to Brad Raffensperger in which he pleaded with Georgia’s secretary of state to “find” enough votes to overturn Joe Biden’s narrow victory in November.
Since then, Willis has indicated she’ll also examine a call between Raffensperger and Trump ally U.S. Sen. Lindsey Graham, R-S.C.; the unusual removal of BJ Pak as U.S. attorney; and false claims made by Trump attorney Rudy Giuliani during a hearing before the Georgia Senate Judiciary Committee.