Eisen is a co-author of an updated 304-page report from Brookings being released Monday that analyzes the publicly available evidence in the criminal investigation launched by Fulton County District Attorney Fani Willis in February 2021. A special grand jury armed with subpoena power has been helping the DA gather evidence since May.
Among Willis’ interests are: calls Trump and his allies placed to Georgia officials between November 2020 and January 2021; the leadership shakeup in the Atlanta U.S. attorney’s office in January 2021; testimony Trump’s personal attorney Rudy Giuliani and others gave to state legislators in Dec. 2020; the fake electors; the breach of elections data in Coffee County in January 2021; and efforts to pressure a Fulton County poll worker to falsely admit to election fraud.
Among the report’s bipartisan co-authors are former DeKalb DA Gwen Keyes Fleming and Donald Ayer, deputy attorney general during the George H.W. Bush administration.
The report includes a timeline of key dates, an analysis of state laws that might have been broken and a glossary of key players. It also goes into great detail about the possible defenses Trump could raise if indicted, such as his lawyers arguing that he is immune from prosecution because his actions occurred while he was president.
But Eisen predicted that defense, if raised, is a loser.
“When you have behavior that is as far out as this, there is no protection for it,” he said.
Fleming said other charges that could be brought include criminal solicitation and forgery in the first degree for the fake electors, who signed their names to a document sent to the National Archives swearing to be Georgia’s duly elected presidential electors.
“Facts in the public record suggest that folks in the former president’s circle may have helped recruit some of those electors or facilitate the creation of these false documents or forged and allegedly forged documents,” said Fleming, who now works in private practice in Washington.
Attorneys for 11 of the electors argued in a court filing last week that their clients did nothing criminal. Holly Pierson and Kimberly Burroughs Debrow said the Republicans were acting on the advice of counsel to preserve Trump’s rights “if the then pending judicial challenge(s) to the presidential election were successful.”
“There is no mystery here the Republican nominee electors took these actions in public, as broadcast by the news media, and they made public, contemporaneous statements to the media and on social media as to exactly what they had done and exactly why they did so,” Pierson and Debrow wrote.
Some reporters said they were turned away from the GOP electors’ meeting on Dec. 14, 2020, but at least one television crew, from Channel 2 Action news, covered their signing ceremony. Georgia Republican Party Chairman David Shafer, who served as an elector, later spoke to members of the news media.
Fulton prosecutors sent “target” letters to all 16 GOP electors, including Shafer, this summer alerting them they could be indicted as a result of the investigation. The DA’s office has subsequently been disqualified from investigating one of those electors, Lieutenant Governor-elect Burt Jones, due to a conflict of interest.
‘It’s about accountability’
The same group from Brookings wrote an initial report about the Fulton investigation 14 months ago. Based on available evidence at the time, the authors concluded that Trump faced “substantial risk of possible state charges.”
Eisen and Fleming said an update was warranted due to new information unearthed by the likes of the Select Committee investigating the Jan. 6 attack, as well as the election security lawsuit that put into the public domain information about the Coffee County breach.
Eisen said the risk of Trump being charged is now more likely than when the initial report was published.
“This is by far the most peril he has ever faced,” Eisen said.
Its release comes amid media reports that Trump will launch his third presidential campaign on Tuesday at his Florida club, Mar-a-Lago.
Trump and his allies have been dismissive of the Fulton investigation and Willis herself.
In a statement issued by his PAC in September, Trump called the probe “a strictly political Witch Hunt” and called his phone call with Raffensperger “perfect.” This summer, Trump hired high-profile criminal defense attorneys to represent him in Georgia, including Drew Findling, whose notable clients have included Clayton County Sheriff Victor Hill, former Atlanta City Hall employee Mitzi Bickers, NBA star Shaquille O’Neal and several famous rappers.
Should Trump announce another presidential run, legal experts say it should not preclude investigations from continuing in Fulton and at the Justice Department, which is examining the Jan. 6 insurrection and Trump’s handling of classified documents after he left office. But it’s certain to add an extra layer of outside scrutiny.
Fleming said Trump’s campaign announcement should not affect Willis’ decision-making.
“Investigate and pursue charges where appropriate, without fear or favor or affection,” said Fleming, citing the oath of office all DAs take. “That means she should proceed or evaluate her evidence without fear from individuals that want her not to pursue charges. And she should do it without favor from individuals that might want her to pursue charges. So in that sense, the facts and the law do not change Monday, Tuesday or any time after.”
Some observers have cast doubt on the ability of a state-level DA like Willis to move forward against a person as powerful as a former president.
But many legal analysts, including Eisen, have called the Fulton investigation the most likely to end in criminal charges for Trump.
“The facts are powerful,” Eisen said. “The law is clear cut. The defenses fail. And he is extremely exposed to criminal liability.”
“She is one that’s going to rise to the moment,” said Fleming, who knows Willis well. “And bottom line, it’s about accountability at any level, at the state level, at the federal level. And I think that’s what we should be focused on. If laws were broken, people need to be held accountable.”