The big news this week was that Merrick Garland appointed veteran prosecutor Jack Smith as Special Prosecutor overseeing the January 6 probe and the investigation into the Mar-a-Lago documents.
Garland skeptics celebrated because they understood this was a clear sign that this investigation is leading toward major indictments. If you’ve been reading this blog, you’ve known for well over a year that these investigations are heading toward important indictments. It was another sign that the investigations are ongoing and that Garland is playing by every rule in the book. Garland haters found reason to hate, but at this point, I suggest tuning them out.
It’s been a while since I’ve looked closely at Fani Willis’s investigation into Trump’s attempts to overturn the election in Georgia. It’s clear that she’s also heading toward indictments, so how about a deep dive🤓?
Timeline of the Conspiracy to Overturn the Election results in Georgia:
November 4, 2020: Trump declared victory in Georgia before the ballots were counted.
The idea behind the fake elector scheme was that if two slates of electors arrived on the day Congress was scheduled to certify the election, it would be up to Congress and Mike Pence to determine which electors were legitimate. Trump allies assumed that the Republican-held Congres and Pence would go along with the farce that the Trump electors were the real ones.
Nov. 5, 2020: Donald Trump Jr. sent a text to Meadows proposing that Republican-controlled state assemblies “step in” and put forward separate slates of “Trump electors.
December 3: The Republican-dominated Georgia state Senate began conducting hearings following persistent accusations from Trump supporters that Georgia’s election was manipulated. Trump’s lawyer Rudy Giuliani appeared before Georgia state legislative committees and put forward lies about the election.
Early December: Trump ally John Eastman reached out to sympathetic state legislators in Pennsylvania, Georgia, and Arizona, urging them to decertify Biden electors and certify alternate Trump electors.
December 6: Georgia governor Brian Kemp refused to go along with the fake elector scheme.
December 14 was the day designated for legitimate members of the Electoral College to meet across the country to sign certificates declaring which presidential candidate won their state.
Also on December 14: Fake electors in swing states, including Georgia, sent certified letters to Congress claiming that Trump won their states and they were the true electors.
January 2, 2021: Trump made his famous call to Georgia Secretary of State Raffensperger (more on that below).
January 3, 2021: Donoghue (at the DOJ) informed BJay Pak, the US Attorney in Atlanta, that Trump was likely to fire Pak. Pak resigned the next day, citing “unforeseen circumstances. Later Pak said that Trump wanted to fire him because he refused to substantiate Trump’s lies about the election in Georgia.
January 5, 2021: Trump named Bobby Christine as Acting U.S. Attorney for the Northern District of Georgia.
January 7, 2021: The voting system in a Georgia election office was breached by Trump allies, including one of the Georiga fake electors, Cathy Latham (former GOP chairwoman of Coffee County). Forensic experts paid by a nonprofit run by pro-Trump lawyer Sidney Powell copied virtually every component of the voting system.
January 12, 2021: Bobby Christine, BJay Pak’s successor, said “there’s just nothing to” the various Trump-supported fraud claims that his office was investigating.
Trump and his allies targeted election workers (most famously, Shaye Moss) subjecting them to harassment and death threats, upending their lives.
There are numerous crimes Trump and his allies could be charged with, including intentional interference with the performance of election duties, conspiracy to commit election fraud, criminal solicitation, and state Racketeer Influenced and Corrupt Organizations (RICO) Act violations.
But let’s stick with GA Code section 21-2-604, which states that:
When the news broke about Trump’s famous January 2, 2021 call to Raffensperger, headlines looked like this New York Times headline:
Trump, in Taped Call, Pressured Georgia Official to ‘Find’ Votes to Overturn Election
If you read GA Code section 21-2-604 and that New York Times headline, you may think, “That’s a slam dunk! Trump solicited Raffensperger to commit election fraud. What the heck is taking so long? Where is the indictment?”
If you read my FAQ page, you know proving crimes isn’t as easy as it looks, so let’s take a close look at the call. On this page, I highlighted a copy of the transcript. You’ll see that the headline didn’t accurately capture what happened during that phone call. While Trump did pressure Raffensperger to find the votes Trump needed to win, Trump’s argument was that those votes were legitimately cast for him.
Trump Talks Like a Mobster
Trump is a master at muddying the waters, tossing out word salads, and speaking in innuendo to avoid having wrongdoing pinned on him. This is exactly what mob bosses do.
Given the word salad he tossed out in that phone call, he will likely claim two defenses:
- I never told Raffensperger to overturn the results of the election. I told him that his results were wrong and that he should correct the errors, and I offered evidence.
- I have a First Amendment right to tell Raffensperger what I thought.
At the heart of these defenses is the claim that he genuinely believed the election was stolen. (He will continue to insist that the election was stolen.)
Spoiler: These defenses will fail.
Michael Cohen explained how Trump does it
Michael Cohen, in his testimony before Congress and in his book, Disloyal, explained how Trump signals the lie people are supposed to tell. “Mr. Trump did not directly tell me to lie to Congress,” Cohen said. “That’s not how he operates.”
How does he operate? Cohen offered this example: During the 2016 campaign, while Cohen was negotiating with Russia on Trump’s behalf (to build Trump Tower Moscow), Trump often asked how the negotiations were going. Other times Trump looked Cohen in the eye and said, “There’s no business in Russia.” Then Trump went out and told the American people that he had no business dealings in Russia. Cohen thus understood that “Trump has no business dealings in Russia” was the lie he was supposed to tell.
In the January 2 phone call, Trump was signaling to Raffesperger the lie Raffensperger was supposed to tell. We know what Trump was doing. Raffensperger knew what Trump was doing. Everyone on the call knew what Trump was doing. But he has a defense.
Having a defense doesn’t mean he gets off. Most defendants have defenses, it just means more work for the prosecutors.
The Claim That Trump Genuinely Thought The Election Was Stolen Cannot Save Him
As everyone who saw Legally Blonde knows, every crime has a mental component called mens rea. Different crimes have different levels of mens rea, so it gets complicated, but the basic idea is that if you accidentally step on someone’s toe, you cannot be convicted of a crime. You need some level of knowledge or intent.
This does not mean that genuine beliefs can get you off the hook. For example, if you genuinely believe the bank stole your money, you can file a claim in court. You can ask for an audit. If you lose in court and you lose your audit, you may genuinely believe the bank has your money — but that does not give you the right to rob the bank to get your money back.
(Perhaps I should have called this blog post “Fun With Criminal Law.”)
Even if Trump genuinely thought he won, his behavior was contrary to the law and he knew his behavior was contrary to the law. For example, in the letter Trump sent Raffensperger, he asked Raffensperger to “decertify” the election. Because there are no legal means for decertifying an election, he was asking Raffensperger to commit an illegal act.
Trump had already tried all the legal means available to him. His allies filed claims in court alleging fraud. Those claims were rejected. His allies demanded recounts. The recounts showed the same results: Trump lost. Even if he thought the courts and audits were wrong, he didn’t have the right to try to overturn the election any more than you can rob a bank if you think the bank owes you money.
The “It’s All A Witch Hunt” Defense Will Also Fail
To prove that the prosecution was politically motivated, Trump would have to show that the charges against him were baseless. To prove that the prosecution was selective, he’d have to show that his prosecution was an intentional and purposeful discrimination that was deliberately based upon an unjustifiable standard such as race religion, or other arbitrary classification.
Good luck with that.
Partial Timeline of Fani Willis’s Investigation
Jan. 1, 2021: Fani Willis is sworn in as Fulton County’s district attorney.
Feb. 10, 2021: Willis announces that she is launching a criminal investigation into attempts by Trump and his allies to overturn the election results in Georgia.
[Notice the one year gap in which investigations were no doubt happening behind the scenes]
Jan. 20, 2022: Willis requests a special grand jury to help with the investigation because a “significant number of witnesses and prospective witnesses have refused to cooperate with the investigation absent a subpoena requiring their testimony.” At least 30 people refused to testify without a subpoena, including Raffensperger.
May 2, 2022
Judge McBurney seats the special grand jury. [A special grand jury investigates but doesn’t indict.]
June 2, 2022
Raffensperger and his wife, Tricia, become the first two witnesses to testify before the special grand jury.
Early summer, 2022
The grand jury issues subpoenas to top state officials, including Raffensperger’s senior aides, Attorney General Chris Carr, House Speaker David Ralston, and several other state legislators. The jurors also request the appearance of the 16 “alternate” GOP electors.
June 29, 2022
Republican members of the General Assembly, including Lt. Gov. Geoff Duncan and former Sen. William Ligon, challenge their subpoenas in court, arguing they’re immune from testifying due to legislative privilege.
Judge McBurney rules that the lawmakers are required to testify, but that there are certain categories of questions that prosecutors can’t ask because of constitutional privileges.
July 5, 2022
The grand jury signed off on summons for several Trump confidantes and former lawyers who live outside of Georgia including Rudy Giuliani, John Eastman, and Sen. Lindsey Graham.
July 6, 2022
Graham challenges the subpoena, arguing that the Constitution’s “Speech or Debate” clause shields him, as a member of Congress, from having to testify.
July 19, 2022
We learn that all 16 fake GOP electors were sent letters telling them they were targets of the investigation.
There are three categories of witnesses in grand jury proceedings:
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- A target has been linked to the crime with substantial evidence. They are likely to be named criminal defendants.
- A witness has no criminal liability (at the moment), but has evidence the grand jury needs.
- A subject is in between: there is some evidence, but not yet enough for a person to be considered a target. A subject could become a target or a mere witness.
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July 18, 2022
Georgia U.S. Rep. Jody Hice challenged his grand jury subpoena. A federal judge later ruled that (as with Graham) Hice had to testify but that there were certain subjects that prosecutors couldn’t ask him due to legislative privilege.
July 20, 2022
New York State Supreme Court Justice Thomas Farber orders Giuliani to appear before the Fulton special grand jury (he had been refusing to appear).
Aug. 15, 2022
Federal U.S. District Court Judge Leigh Martin May denies Graham’s bid to quash his subpoena, ruling that Willis “has shown extraordinary circumstances and a special need for Senator Graham’s testimony.” Graham announced that he’s appealing to the 11th Circuit Court of Appeals.
Aug. 17, 2022
Giuliani was informed that he was a target of the investigation. Afterward, he testified before the special grand jury for roughly six hours. (No doubt he was trying to persuade the grand jury not to indict him.)
Aug. 17, 2022
After negotiations between Gov. Brian Kemp and Willis’s office broke down, Kemp filed a motion seeking to quash his subpoena. About two weeks later, McBurney ruled that Kemp must testify, but delayed his testimony until after the November elections.
Aug. 25, 2022
The grand jury issued summons seeking testimony from former White House Chief of Staff Mark Meadows, Trump campaign attorney Sidney Powell, adviser Boris Epshteyn, Lin Wood, and Atlanta data services firm Sullivan Strickler.
November 1: The Supreme Court ruled that Lindsay Graham must testify. (Lindsay Graham’s testimony has reportedly been rescheduled until November 22.)
November 15: Governor Brian Kemp testified before the grand jury.
November 15: A judge ordered Michael Flynn to testify.
November 16: Former White House aide Cassidy Hutchinson testified.
November 17: Mark Meadows appealed to the South Carolina Supreme Court in the hopes of getting out of testifying.
Fani Willis has said charging decisions could come as soon as November or December of 2022, which means anytime. It could also mean in 2023.
As we know, these things always take longer than you might think they will.
On the other hand, sometimes you’re just caught red-handed (and you just don’t want to let go)
