A pair of firms that vetted voter fraud claims for Donald Trump’s 2020 campaign could help Fulton County prosecutors determine whether the former president and his allies had corrupt intent when they pressured officials to overturn the results of the election in Georgia. But the companies may not provide the kind of smoking gun evidence that Trump’s biggest critics are searching for, some legal observers say.
The Trump campaign paid Simpatico Software Systems and Berkeley Research Group about $1.5 million to investigate claims of sweeping fraud in Georgia and other states in late 2020, according to The Washington Post. Neither firm substantiated the fraud allegations and Trump’s campaign buried their reports, according to the news outlet, which first reported that the Fulton District Attorney’s office recently reached out to the contractors seeking data, research and communications with the campaign.
The reporting provided additional evidence that DA Fani Willis has reached into other states as she examines the legality of the behavior of Trump and his colleagues between Nov. 2020 and Jan. 2021 in Georgia. The Democrat is eyeing potential racketeering charges.
She is one of several prosecutors investigating Trump, who is campaigning for a second term. Trump announced Thursday that a federal grand jury had indicted him as part of a classified document probe. The indictment has not been made public, but multiple news outlets, citing sources familiar with it, have said it contains seven counts, including charges of willfully retaining national defense secrets in violation of the Espionage Act, conspiracy to obstruct justice, and making false statements.
Willis previously indicated she plans to announce her indictment decisions in early to mid-August and strongly suggested she would seek charges against the former president.
Former Gwinnett County DA Danny Porter said it’s common for a local prosecutor to subpoena a company outside of state borders for documents and other information. Simpatico is headquartered in Warwick, R.I. and Berkeley Research Group in Emeryville, Calif.
“As a prosecutor, it would be something I’d want to get my hands on through these subpoenas to at least see what it said and to know if it’s valuable in my case or not,” said Porter.
But the fact that the Trump campaign hired outside contractors and then suppressed their findings is not criminal, said Michael J. Moore, a federal prosecutor during the Obama administration based in Middle Georgia.
“It happens all the time in the legal arena,” Moore said. “You retain an expert to look at something and they don’t give you the opinion you wanted. Then you very well might get you another expert to see if they find something else. It doesn’t mean you’re pushing forward anything that doesn’t potentially have some merit.”
The Post reported that both companies are said to be cooperating with Fulton prosecutors and that Jack Smith, the Justice Department’s special counsel examining Trump, is also interested. Both firms declined to comment for this article, as did a spokesman for the Fulton DA’s office.
Where Simpatico and Berkeley could be helpful to Willis is determining whether Trump and his top allies had criminal intent when they sought to compel Georgia officials to reverse Democrat Joe Biden’s narrow win based on widespread fraud that didn’t actually exist. Proving such intent, known by its Latin name of mens rea, is required for any potential charges to stick in court.
At the heart of the issue is whether Trump and his colleagues knew they were making false statements about fraud — or whether they had an honestly held belief that it existed. Trump to this day publicly insists that there was massive fraud in the 2020 elections.
Jeff E. Grell, a Minneapolis-based attorney and law professor, said the contractors could provide circumstantial evidence.
“If you’ve got your own research groups you’ve hired for the purpose of proving the truth of these assertions that you’re making and these contractors come back and say there’s no truth to that … and you continue to assert these claims, that’s evidence of expressing an opinion that is not honestly held,” he said.
Even if prosecutors receive the firms’ reports that showed no widespread fraud, they would still need additional evidence to prove that Trump or other key figures saw and digested the contractors’ analysis, said Porter.
“We don’t know the circumstances of how it was conveyed to” Trump, said Porter, a Republican. “If he just got a report, how do you show he read it or discussed it with anybody? Or said ‘I read it and I think it’s a bunch of bull.’ Then it becomes less important.”
Trump and his colleagues could argue that despite seeing the reports from Simpatico and Berkeley, they had other sources of information that made them believe claims of widespread fraud were credible. Indeed, the Post reported that after Berkeley briefed senior Trump advisers about its findings, White House Chief of Staff Mark Meadows said the group was not looking hard enough for fraud.
It would be up to a trial jury to decide if there is enough evidence to infer criminal intent.
“There’s gray ambiguity in this area,” said Grell. “Intent is always a subjective criteria of a crime and that’s why it’s proven circumstantially.”
Over the course of Willis’s investigation, other information has surfaced that could shed light on the former president’s intent.
After former White House aide Cassidy Hutchinson’s star turn before the Jan. 6 committee on Capitol Hill, Fulton prosecutors called her to testify last fall before the special grand jury that gathered evidence for Willis’s inquiry. Before the congressional panel, Hutchinson and other presidential advisers detailed conversations with Trump in which he privately acknowledged he had lost the election to Biden even as he claimed in public he had won.
The Post also reported that in addition to asking Simpatico and Berkeley for data about Georgia, Fulton prosecutors requested information about the Trump campaign’s activities in other states.
As early as last summer, prosecutors confirmed they were interested in events and conversations that took place outside of Georgia, from the Oval Office and the Justice Department to the South Carolina plantation of attorney Lin Wood.
A host of witnesses based in Washington, Colorado, New Mexico and elsewhere were summoned to testify before the special grand jury last year. Virtually every subpoena spelled out that the DA was interested in witnesses’ knowledge of “multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.”
Many of the events Willis has been interested in, including the appointment of a slate of “alternate” GOP electors and the accessing of sensitive data from local election servers, took place in Georgia and other swing states.
“Certainly you can tell she’s seeing things in other states that she thinks were either a part of efforts here or that this state was part of a larger effort on a nationwide basis,” said Moore.