As we have long argued, former President Donald Trump is at substantial risk of indictment as a result of his potential violations of state election law in Georgia – and perhaps elsewhere – after he lost the 2020 election. But Fulton County District Attorney Fani Willis’ recently granted request for a special grand jury only heightens this risk for the former president. It shows that the District Attorney is serious about fully investigating the alleged crimes Trump committed to try and circumvent democracy in Georgia.
The ex-president is in this position thanks to his well-documented attempts to challenge the election results even after the votes were counted, re-counted and certified in Georgia and across the nation and Joe Biden was announced the winner. After being rejected by courts across the nation in 60 baseless lawsuits, Trump resorted to even more questionable tactics. On Jan. 2, 2021, he called Georgia Secretary of State Brad Raffensperger and pressured him to “find 11,780 votes” for Biden that could be tossed out — exactly one more vote than Biden’s margin of victory in Georgia — to overturn the results in the state and overthrow the will of millions of Georgians.
Convening a special purpose grand jury for the Trump investigation makes good sense under these circumstances. A special purpose grand jury gathers a group of community members for a longer term than a normal grand jury. This allows them to amass the relevant facts and analyze the law to give an extra level of confidence in the recommendations they will make in a final report. Unlike regular grand juries, the special grand jury cannot return an indictment, but their recommendations can be presented to a regular grand jury, which can then indict. And as DA Willis indicates, the special grand jury will also have subpoena authority and other tools to assist investigators in doing their job and in completing the investigation.
This ability to fully investigate and subpoena evidence is critical because, as we argued in our report from the Brookings Institution, the publicly available evidence may support charging Trump with several crimes under Georgia election law and other criminal statutes. For instance, Trump’s demand to Raffensperger to “find 11,780 votes” could constitute criminal solicitation to commit election fraud if the evidence ultimately shows that Trump intended that Raffensperger do as he asked. Everything in the public record – including Trump’s threat that the failure to find the nonexistent votes would pose a “big risk” to Raffensperger and his staff – indicates that Trump seemingly wanted Raffensperger to find enough votes to overturn the election results.
And the case against Trump has only gotten stronger since that report. Evidence continues to emerge about former president Trump’s unprecedented efforts to convince Georgia officials to overturn the results of the 2020 election through unlawful means. In his recent book, Secretary of State Brad Raffensperger not only recounts Trump’s infamous call urging him to “find” enough votes to flip the state, but also again reiterates that he “felt then – and still believe today – that this was a threat,” giving insight into the former president’s mental state at the time. And when Trump appeared at a rally in Georgia not long ago, he confirmed details, made it clear he believes he did nothing wrong and would attack Georgia’s democracy again if given the chance.
Another emerging pattern of potential criminal liability comes from the phony electoral certificate that falsely stated that Donald Trump had won Georgia’s electoral votes. This fraudulent document was signed and filed by 16 Georgia Republicans in December 2020 and was submitted to the National Archives as if authentic. Reporting suggests that Trump, his campaign, Giuliani and others may have been involved in the effort to push alternative phony slates of electors in multiple states. The circumstances surrounding the false Georgia certificate also merit, and undoubtedly will get, scrutiny from the DA and the grand jury.
A special grand jury will allow the DA to dig deeper and find additional information that could be important to the case. And in light of Trump’s attempts to install his most adamant supporters in election offices across the country, this investigation is increasingly important. Accountability will prevent the reoccurrence of similar bad acts.
Not only does the use of the special panel allow for an in-depth and careful consideration of evidence while leaving regular grand juries to focus on other criminal cases in Fulton County, but this grand jury’s work would remove speculation, settle facts, and present a case -- for or against -- prosecution. For a historical analog, look no further than the Watergate grand jury’s so-called “road map” against Nixon, which put into the grand jury’s own words the legal and moral case against the president.
In our opinion, empaneling a special purpose grand jury in Fulton County is the best way to uncover the facts of the case and allow the true victims of this potential crime the chance to weigh and consider the evidence. After all, Trump not only may have violated specific Georgia statutes, but at the root he also tried to corrupt Georgia’s democracy itself, which belongs to the people. And in our federalist system of government, the state has significant responsibility for protecting our elections.
Reporting also indicates that District Attorney Willis is in communication with the U.S. House Select Committee on the January 6 Attack. That is welcome news -- the Committee’s evidence, including the 700 documents the Supreme Court just allowed to be released, can be very useful to her. Those documents very likely include Georgia references.
The district attorney was correct to call for empaneling a special purpose grand jury, and the Superior Court’s approval will now allow a thorough examination of the facts which could ultimately led to criminal charges. Bringing charges, if supported, would be a critical step towards punishing Trump’s assault on Georgia’s democracy and to deter him or others from trying to do so in the future. With the Senate having failed to address the Big Lie by passing voting reform, the DA pushing for another form of accountability is welcome.
Norman Eisen was the former special counsel to the House Judiciary Committee during the first Donald Trump impeachment and previously served as President Barack Obama’s ethics czar and the ambassador to the Czech Republic.
Gwen Keyes Fleming is a former District Attorney for DeKalb County who also served in senior positions in the Obama Administration, including as chief of staff to the EPA and general counsel for Immigration and Customs Enforcement (ICE) within the Department of Homeland Security.