Even though the Justice Department beat Fulton County prosecutors in securing election-related charges against former President Donald Trump, a possible conviction in metro Atlanta could have more staying power in the long run.
That’s because of Georgia’s pardon process, which is designed to be less political, and the breadth of state laws Fulton District Attorney Fani Willis could utilize in the weeks ahead, when she’s expected to pursue charges against Trump and others for their actions following Georgia’s 2020 elections.
“That’s the one Trump should be most scared of,” former Gwinnett County DA Danny Porter said of the widely-expected indictment in Fulton County. “Because he can’t pardon his way out of it or get somebody to pardon his way out of it.”
There is significant overlap between Willis’s interests and those of DOJ special counsel Jack Smith.
Featured prominently in Smith’s sweeping 45-page indictment are the lies the former president told Secretary of State Brad Raffensperger about Georgia’s vote count during their famous leaked phone conversation on Jan. 2, 2021. That call is what prompted Willis to launch her own criminal investigation 2 1/2 years ago.
Other areas of mutual interest include: Rudy Giuliani’s falsehood-filled testimony to Georgia legislators about vote counting at Atlanta’s State Farm Arena; the appointment of 16 “alternate” presidential electors for Trump in Georgia; White House Chief of Staff Mark Meadow’s visit to a Cobb County audit of absentee ballot signatures; and Trump’s phone call to Georgia Attorney General Chris Carr.
Even though Smith was able to indict Trump first on charges related to his conduct in Georgia, that doesn’t preclude Willis from seeking state-level charges of her own centered on the same events. Indeed, Willis has said Smith’s case does not impact her and that the two have not been coordinating.
“It’s a fully independent sovereign, so the state can proceed and the feds can proceed, even though the charges are related,” said Porter, a Republican.
While Smith’s case in Washington encapsulates Trump’s activities far beyond Georgia, his work could be cut short.
A future Republican president could pardon Trump of any convictions in the Jan. 6 or classified documents cases — or direct their attorney general drop the federal cases if they’re still pending. Debatably, Trump could pardon himself if he wins another term in 2024 and the courts agree.
But it would be far harder for that to occur if Trump is ultimately indicted and convicted of state crimes in Fulton County.
Should Trump be convicted of crimes in Fulton, Republican Gov. Brian Kemp would have no authority in granting a pardon. Georgia is one of only six states in which a board, operating independently of the governor, makes the decisions. Here, it’s the secretive State Board of Pardons and Paroles whose five members are appointed by the governor.
Georgia’s current system was created by constitutional amendment in 1943 after former Gov. E.D. Rivers was indicted on corruption charges, including accusations that he sold pardons.
To be considered for a pardon, a person must first complete all prison sentences at least five years before applying, have lived a “law-abiding life” in the intervening years, have no pending charges against them and have paid all their fines in full.
Where things could get murkier is if Trump wins the 2024 election before his expected case goes to trial in Fulton County. It’s unclear if Willis could continue to pursue a pending case against a sitting president without running into constitutional questions.
State laws and co-conspirators
In addition to the pardon process, some legal analysts say there are statutes on the books in Georgia that are written in a way that could be convenient for Willis as she tries to secure a conviction.
The state, for example, has a solicitation to commit election fraud statute for people who try and compel others to commit felony crimes related to elections and voting. A bipartisan report from the Washington think tank the Brookings Institution argues that the statute could be applied to calls Trump placed in late 2020 and early 2021 to Raffensperger, Frances Watson, an election investigator who at the time worked in the Secretary of State’s office.
Willis has also suggested she could use Georgia’s expansive racketeering law in the Trump case.
Georgia’s version of the Racketeer Influenced and Corrupt Organizations Act is written more broadly than its federal counterpart. Under the Georgia law, it’s somewhat easier to prove a pattern of racketeering.
If Willis moves forward with RICO charges, as she’s widely expected to, she’s likely to indict a group of people — and not follow Smith’s approach of just indicting Trump at the outset.
Among those who could also be charged in Fulton are several whose actions were detailed in the federal indictment as unnamed co-conspirators, including Giuliani, who has been told he’s a target of the Fulton probe, and attorneys who advised Trump as he attempted to cling to power, including John Eastman, Sidney Powell, Jeffrey Clark and Kenneth Chesebro.
“There’ll be co-defendants charged here with Trump” in Fulton, said Atlanta attorney Buddy Parker, a former federal prosecutor.
Staff writer Bill Rankin contributed to this article.