How can Trump fight Fulton’s election meddling probe?

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Fulton County DA Fani Willis discusses her timeline to call witnesses for alleged Donald Trump 2020 election tampering. Video by Ryon Horne/AJC

Republican expected to cite presidential immunity, fight subpoenas

Former President Donald Trump has a reputation, honed by decades as a real estate developer and celebrity businessman, as a street fighter in the courtroom.

So, for many legal observers, it’s a question of when — not if — the former president will ramp up efforts against Fulton County District Attorney Fani Willis.

Willis and a team of 10 staffers are investigating whether Trump and his allies tried to illegally interfere in the 2020 presidential election in Georgia. At the heart of their inquiry is the Jan. 2, 2021 phone call Trump placed to Brad Raffensperger. During it, he urged the secretary of state to “find” the nearly 12,000 votes to reverse Joe Biden’s win in Georgia. Prosecutors are also delving into the actions of several Trump allies, including his personal attorney Rudy Giuliani, who made claims about widespread election fraud and rigged voting machines in Georgia, though both allegations had been debunked by state authorities.

Next month, their investigation will enter another stage, when a special purpose grand jury is seated. Those jurors will be empowered to issue subpoenas compelling the testimony of reluctant witnesses. The district attorney recently said that she’ll be seeking to summon at least 30 people as she gathers evidence. Ultimately, the grand jury will issue a recommendation on whether Willis should file criminal charges against Trump or others.

No one expects the ex-president and his robust legal team to sit by idly and await the results.

“He’s got a stable of lawyers, and they’re just going to bury her in paperwork,” said former Gwinnett County DA Danny Porter. “Everything she has done will be questioned and examined and challenged.”

A Trump spokesman did not respond to multiple requests for an interview. But, in the past, aides to the former president have labeled the Fulton County investigation a “witch hunt.” Many of the state’s Republicans, meanwhile, are cynical about Willis’ motives, saying she’s timing her probe for maximum political effect ahead of the midterm elections, an argument Willis flatly rejects.

There are many things, big and small, that Trump’s team could do to slow or delay proceedings, legal experts say.

His attorneys could challenge the way Georgia selects grand jurors. They could fight subpoenas and try to block the testimony. They could dispute the constitutionality of prosecuting an ex-president. They could attempt to move the proceedings out of Fulton County, busying judges from Superior Court all the way up to, potentially, the U.S. Supreme Court.

Delays work to Trump’s advantage, many defense attorneys say, especially since Willis is up for reelection in 2024 and Trump himself may run again for president then.

Carrollton-based attorney Cade Parian, the chairman of the Republican Trial Lawyers Caucus, said the longer proceedings drag out, the harder it is for prosecutors to justify the cost of a protracted case to taxpayers and the local governments that fund them.

“It’s all politics,” he said.

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Former former President Donald Trump throws hats as he enters the stage during a rally for Georgia GOP candidates at Banks County Dragway in Commerce on Saturday, March 26, 2022. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Former former President Donald Trump throws hats as he enters the stage during a rally for Georgia GOP candidates at Banks County Dragway in Commerce on Saturday, March 26, 2022. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

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Former former President Donald Trump throws hats as he enters the stage during a rally for Georgia GOP candidates at Banks County Dragway in Commerce on Saturday, March 26, 2022. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Special grand jury defenses

Initially, the legal maneuvers Trump’s attorneys can make will be limited, because the former president hasn’t been charged with a crime, local defense attorneys say.

The entire special grand jury process is designed to be secret. Other than a superior court judge and prosecutors, no one is allowed to watch the proceedings — including Trump’s lawyers.

But Trump’s team could try to challenge how special grand juries are selected in Georgia, arguing that they aren’t adequately vetted.

“Theoretically, he could attack the grand jury ... saying that its makeup is constitutionally deficient,” said Atlanta criminal defense attorney Steve Sadow. “That’s almost never done, but it is a delaying tactic of the umpteenth degree.”

The qualifications for serving on a Georgia grand jury are relatively broad. Any U.S. citizen older than 18 who has lived in Fulton County for at least six months, is not a convicted felon or a current elected official is eligible for service, according to the Prosecuting Attorneys’ Council of Georgia.

Just as he has with the U.S. House committee probing the Jan. 6 attacks, Trump could also try to block previous White House officials from testifying or handing over documents by citing executive privilege. The Republican has lost several recent court battles over documents after the Biden administration said it wouldn’t fight to keep them secret now that Trump is no longer in office.

As the special grand jury meets, Trump’s legal team likely will be doing behind-the-scenes work.

Longtime defense lawyer Brian Steel predicted that Trump’s attorneys will reach out to some of the people after they testify, especially those who are supporters.

Witnesses can share what questions they were asked and what answers they gave. “That way (Trump) can really start understanding what is the focus, where are the good points for me and where are the issues I need to deal with,” Steel said.

Still, those attorneys will need to be careful not to do anything that could be seen as obstruction, he said.

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Secretary Of State Brad Raffensperger speaks during a press conference at the Georgia State Capitol on Wednesday, Aug. 11, 2021. (Christine Tannous / AJC file photo)

Credit: Atlanta Journal-Constitution

Secretary Of State Brad Raffensperger speaks during a press conference at the Georgia State Capitol on Wednesday, Aug. 11, 2021. (Christine Tannous / AJC file photo)

Credit: Atlanta Journal-Constitution

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Secretary Of State Brad Raffensperger speaks during a press conference at the Georgia State Capitol on Wednesday, Aug. 11, 2021. (Christine Tannous / AJC file photo)

Credit: Atlanta Journal-Constitution

Credit: Atlanta Journal-Constitution

Presidential immunity

When the special grand jury’s investigation ends, members recommend whether Willis should seek an indictment. The DA can decide to act on or ignore their advice.

Should she decide to press charges, the former president’s attorneys are expected to echo the argument they’ve used during Trump’s impeachment battles and tussles with New York prosecutors, that the Constitution shields all actions he took while in office, including the call with Raffensperger, from criminal prosecution.

The reasoning behind immunity is that presidents would carry out their duties as commander-in-chief differently if they were constantly worried that they could be sued personally.

The Justice Department over the years has agreed that presidents should be shielded from prosecution while in office, but there’s debate about what happens once a commander-in-chief steps down. There’s no legal precedent upon which to rely — no past president has ever been convicted of a crime.

The Constitution says a president who’s been convicted during an impeachment trial “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” which suggests that presidents can be charged for misconduct in office once they’ve left, some scholars say.

Lawyers from the Washington-based Brookings Institution, which last year issued a report analyzing Trump’s legal risk in Fulton County, cited a 2020 ruling from the U.S. Supreme Court that noted that Trump’s lawyers conceded that “state grand juries are free to investigate a sitting president with an eye toward charging him after the completion of his term.” The think tank also argued that President Gerald Ford’s pardon of Richard Nixon in 1974 suggests that the former president otherwise would have been at risk of being prosecuted for his misconduct during Watergate.

Still, Trump could contend that, as president, he had broad interests in ensuring that elections in Georgia — and every other state — were carried out safely and securely.

But Joshua Matz — a Washington-based attorney who served as counsel for the House Judiciary Committee during both impeachments and is representing E. Jean Carroll, an author and advice columnist who is suing Trump for defamation — argues otherwise. Trump acted far outside the bounds of his office when he took such a deep interest in Georgia’s ballot counting, Matz said.

“It’s not within the role or the function or the purpose of the office of the presidency to tell secretaries of state how to count the ballots within their jurisdiction,” he said. “In fact, the entire structure of federal law is designed to wall presidents off from that kind of role.”

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A member of the Georgia Electoral College looks over a Certificate of Vote during the official casting of the ballot in the Georgia Senate Chambers at the Georgia State Capitol building in Atlanta, Monday, December 14, 2020. (Alyssa Pointer / AJC file photo)

Credit: Alyssa Pointer / Alyssa.Pointer@

A member of the Georgia Electoral College looks over a Certificate of Vote during the official casting of the ballot in the Georgia Senate Chambers at the Georgia State Capitol building in Atlanta, Monday, December 14, 2020.  (Alyssa Pointer / AJC file photo)

Credit: Alyssa Pointer / Alyssa.Pointer@

Combined ShapeCaption
A member of the Georgia Electoral College looks over a Certificate of Vote during the official casting of the ballot in the Georgia Senate Chambers at the Georgia State Capitol building in Atlanta, Monday, December 14, 2020. (Alyssa Pointer / AJC file photo)

Credit: Alyssa Pointer / Alyssa.Pointer@

Credit: Alyssa Pointer / Alyssa.Pointer@

Other arguments

Trump’s attorneys likely also will argue that their client had no criminal intent when he placed his calls to Georgia officials. Proving that intent is an essential step for prosecutors, and they must do so beyond a reasonable doubt.

Veteran defense attorney Don Samuel, who describes himself as politically liberal, said Trump’s attorneys have a pretty conceivable argument that Trump wasn’t asking Raffensperger to pull ballots out of thin air when he told the secretary of state to “find” nearly 12,000 votes.

“‘Find’ can mean, ‘I want you to go through 159 counties. Every single one of these counties is going to have mistakes. Why can’t you, secretary of state, go through those 159 counties and ... the little mistakes are going to add up. See if you can find the 11,800,’” said Samuel.

About Trump, Samuel added, “I understand that his behavior is absolutely reprehensible. But there’s a difference between being immoral, amoral, reprehensible and being a criminal. And proof beyond a reasonable doubt requires more than ‘Well, don’t you think that’s what he meant?’ That’s not a criminal standard.”

Others disagree. They argue that Trump had suggested for months before the election that he would contest the results if he lost, and that he was informed on multiple occasions, including by his own administration, that there was no widespread fraud.

If he ends up facing charges, Trump could try to move the prosecution to federal court for what would presumably be a more favorable jury pool. The law says any federal officer can transfer a criminal action brought against them in state court to federal court, if the prosecution is “for or relating to any act under the color of such office.”

In a federal case, jurors would be drawn from throughout the northern district of Georgia, which encompasses some of the most reliably conservative parts of the state, including the areas surrounding Rome and Dalton. A jury selected from there likely would be more receptive to Trump’s arguments than in Fulton County, where more than 72% of voters opted for Biden in 2020.

Investigations of Donald Trump

Fulton County prosecutors aren’t the only ones delving into the past activities of former President Donald Trump. Here are where other major investigations stand:

Manhattan

District Attorney Alvin Bragg recently clarified that his office’s criminal investigation into Trump’s business practices was moving forward. His comments came amid an uproar following the resignations of the two top prosecutors leading the inquiry. Bragg had reportedly clashed with those attorneys over the strength of their case, and many observers believed that the new DA was shelving the more than three-year-old probe. The office already has filed charges against the Trump Organization for allegedly running a scheme to help executives, including chief financial officer Allen Weisselberg, evade taxes.

New York State

A judge recently ruled that Attorney General Letitia James could question Trump and two of his adult children, Ivanka Trump and Donald Trump Jr., in a civil case. James’ is looking into whether Trump committed fraud by inflating or otherwise misrepresenting the value of his business assets to receive more favorable loans. If James finds wrongdoing, she could file a lawsuit against the Trumps or their company – but not criminal charges.

House Select Committee

Seven Democrats and two Republicans make up the panel, which is continuing its work to document the Jan. 6, 2021, attack on the U.S. Capitol and the discussions Trump had before it. The committee has gone to court to defend its subpoenas, and eventually plans to issue a detailed report on its findings, which could be used by state and federal prosecutors in their own cases. Staff is sharing information with Fulton prosecutors, and Chairman Bennie Thompson, D-Miss., recently told The Atlanta Journal-Constitution that Fulton County DA Fani Willis’ findings “can add to the body of knowledge for our investigation here in Washington.” The committee can’t pursue criminal charges, but can criminally refer their case to the Justice Department, which is also investigating the Jan. 6 attacks.

—Tamar Hallerman and Tia Mitchell