According to a person with direct knowledge of the deliberations, an Atlanta district attorney is moving toward convening a special grand jury in her criminal investigation of election interference by the former president and his allies, as the House committee investigating the Jan. 6 Capitol riot fights to extract testimony and documents from Donald Trump’s White House.
The Fulton County prosecutor, Fani Willis, launched her investigation in February, and her office has been in contact with the House committee, whose testimony might be crucial to her probe. However, her work has been hampered in part by delays in the panel’s fact-gathering process. Willis, a Democrat, would be signaling that her own investigation is building up by summoning a grand jury focused only to the charges of election meddling.
Legal experts view her investigation as potentially dangerous for the former president, given the numerous interactions he and his allies had with Georgia officials, most notably Trump’s January call to Secretary of State Brad Raffensperger, urging him to “find 11,780 votes” — enough to overturn the state’s election result. The Georgia case is one of two current criminal investigations known to include the former president and his associates; the other being the Manhattan district attorney’s probe into his financial transactions.
Willis’ inquiry is taking place in a state that is still at the core of the nation’s political battle over the election.
The Biden Justice Department has filed a lawsuit against Georgia over an extremely restricted voting rule enacted by the Republican-led legislature, claiming that it discriminates against Black voters. Simultaneously, Trump is actively attempting to restructure the state’s political environment by purging Republicans who he believes are hesitant to do his bidding or accept his phony charges of election fraud.
He is backing a challenger against Raffensperger in the primary next year and has been wooing potential candidates to run against Republican Gov. Brian Kemp. Retired Sen. David Perdue, a Trump loyalist, is considering a Senate run, as is former football player Herschel Walker. A new governor would not have direct authority to pardon, which is assigned to a state board in Georgia.
Instead of convening a separate grand jury, Willis might present evidence to one of the two grand juries presently sitting in Fulton County, a long-standing Democratic stronghold that includes most of Atlanta.
However, the county has a massive backlog of more than 10,000 potential criminal cases that have yet to be heard by a grand jury as a result of logistical complications caused by the coronavirus pandemic and, according to Willis, inaction on the part of her predecessor, Paul Howard, whom she replaced in January.
In contrast, a special grand jury, which would be comprised of 16-23 members under Georgia law, could concentrate entirely on the prospective case against Trump and his associates. According to a source with direct knowledge of the considerations who spoke on the condition of anonymity because the decision is not final, Willis is expected to take the move shortly. Although such a panel might issue subpoenas, Willis would have to return to a normal grand jury to pursue criminal charges.
Willis’ office refused to comment; earlier this year, she stated in an interview, “Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.”
Raffensperger’s take on Trump’s election involvement was evident in a book issued this month, on Election Day: “For the office of the secretary of state to ‘recalculate’ would mean we would somehow have to fudge the numbers. The president was asking me to do something that I knew was wrong, and I was not going to do that,” he wrote.
“I felt then — and still believe today — that this was a threat,” Raffensperger wrote of Trump’s call.
The Brookings Institution published a 114-page examination of possible difficulties in the case last month, with writers including Donald Ayer, a deputy attorney general during the George H.W. Bush administration, and Norman Eisen, a special counsel to President Barack Obama.
According to the study, Trump’s post-election behavior in Georgia placed him “at substantial risk of possible state charges,” including racketeering, election fraud solicitation, deliberate interference with execution of election responsibilities, and conspiracy to commit election fraud.
Trump’s constant criticism on what happened in Georgia may be hurting his cause. He had a rally in Perry, Georgia, in September, attended by hundreds of supporters as well as Walker and Rep. Jody Hice, who is running against Raffensperger.
At the event, Trump recounted calling Kemp, who refused to intercede despite his entreaties.
“Brian, listen,” Trump said he told the governor. “You have a big election integrity problem in Georgia. I hope you can help us out and call a special election, and let’s get to the bottom of it for the good of the country.”
According to the Brookings writers, these statements might aid prosecutors in establishing “intent” to convince legislators to commit election fraud – a critical step in building a solicitation case against Trump.
“I think he worsened his exposure with those comments,” Eisen said. “The mere fact of his conversation with Kemp is evidence of solicitation of election fraud, because Trump’s demand was based on falsehoods. By commenting on it further at the rally, he offered the prosecution free admissions about the content of that exchange.”
Willis has said that a racketeering charge is being considered. Such cases are often linked to trials of mafia leaders under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO, and Georgia has its own state version of the statute.
“I always tell people when they hear the word racketeering, they think of ‘The Godfather,’” Willis said earlier this year, explaining that the concept could also extend to otherwise lawful organizations that are used to break the law. “If you have various overt acts for an illegal purpose, I think you can — you may — get there.”