Between November 2020 and January 2021, then-President Donald J. Trump led an unprecedented attempt to overturn the results of a free and fair presidential election. Central to that attempt was a multi-faceted effort to reverse his loss, confirmed through multiple recounts and lawsuits, in the state of Georgia. Because of the potentially criminal nature of some of Trump’s conduct, on February 10, 2021, Fulton County District Attorney Fani Willis announced a criminal investigation into the activities of the former president and his allies. She has said charging decisions may come as soon as November or December 2022.
Senior Fellow - Governance Studies - The Brookings Institution
Adjunct Professor of Law - Georgetown Law
President - Citizens for Responsibility and Ethics in Washington (CREW)
Gwen Keyes Fleming
Partner - Van Ness Feldman, LLP
Senior Research Analyst and Project Manager, Governance Studies - The Brookings Institution
Partner - Kaplan Hecker & Fink LLP
Policy Director - Citizens for Responsibility and Ethics in Washington (CREW)
Chief Investigative Counsel - Citizens for Responsibility and Ethics in Washington (CREW)
In this second edition of our October 2021 report, we review the investigation and its basis. We assess the publicly known facts and relevant law and analyze the extent to which the former president may be held criminally responsible for his conduct in Georgia. We conclude that Trump is at substantial risk of criminal prosecution in Fulton County.
Trump’s efforts to overturn Georgia’s election began when he claimed victory in the state before vote-counting concluded. As votes were still being processed from November 3 into the following week, Trump bombarded Georgia election officials with tweets baselessly alleging voter fraud and pushed those officials to diverge from codified election procedures. Meanwhile, his campaign and allies filed a series of lawsuits in state and federal courts challenging his loss. Trump’s efforts escalated as two recounts affirmed Biden’s narrow victory.
In December 2020, Trump reportedly began to place calls directly to Georgia officials, including Governor Brian Kemp and Attorney General Chris Carr, to urge them to support efforts aimed at decertifying his loss. Trump’s personal lawyer, Rudy Giuliani, appeared before the Georgia legislature and presented false allegations of fraud and misrepresented the law in an attempt to convince state lawmakers to take extraordinary action to reverse Biden’s win. Later, when his own acting attorney general refused to use the Justice Department in support of Trump’s efforts, Trump maneuvered to install a loyalist atop the department who planned to send a draft letter designed to mislead and influence the Georgia legislature into convening to overturn the election results. Additionally, Trump campaign officials reportedly helped coordinate Republican state officials to meet on December 14, 2020 to sign and submit to Congress and the National Archives a false electoral certificate purporting to show Trump’s victory in the state.
Finally, as the January 6 congressional certification of Joe Biden’s victory neared, Trump called Secretary of State Brad Raffensperger on January 2. In the call, Trump both threatened and pleaded with Raffensperger to “find” 11,780 votes, thereby tilting the state’s presidential election in his favor.
Based on these facts and a litany of additional public reporting, Trump appears to be at substantial risk of prosecution for both election and non-election crimes in violation of Georgia state law.
Potential election crimes that may be on the table for Georgia prosecutors include: (1) solicitation to commit election fraud, Ga. Code Ann. § 21-2-604(a); (2) intentional interference with performance of election duties, Ga. Code Ann. § 21-2-597; (3) interference with primaries and elections, Ga. Code Ann. § 21-2-566; and (4) conspiracy to commit election fraud, Ga. Code Ann. § 21-2-603. While the elements of these crimes vary, the gravamen of these offenses is that through conduct such as the call to Raffensperger demanding that he “find 11,780 votes” and the potential orchestration of the false electors scheme, Trump may be shown to have exhorted Georgia officials to change the lawful outcome of the election. Trump’s full course of conduct before and after the election suggests clear and consistent intent to solicit and pressure government officials to reverse the election results.
Criminal liability under Georgia state law may attach not only to Trump but to others, such as Rudy Giuliani, the 16 false electors, all of whom received target letters from Willis indicating they may face criminal charges.
In addition, evidence suggests that Trump and his cohort, including the false electors, may have committed other crimes outside of the election title, such as: making false statements, Ga. Code Ann. § 16-10-20; improperly influencing government officials, Ga. Code Ann. § 16-10-93; forgery in the first degree, Ga. Code. Ann. § 16-9-1; and criminal solicitation, Ga. Code Ann. § 16-4-7. The same core fact pattern comes into play: Trump is alleged to have repeatedly lied about the 2020 election to Georgia officials and to have used that misleading conduct, as well as intimidation and threats, to push them to change the outcome of the election.
Trump may face charges for possible violations of Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. The statute recognizes that if violations of individual criminal statutes by a single person are bad, an enterprise that repeatedly violates the law is worse and should be subject to additional sanction. To be charged, the law requires a “pattern” of misconduct, as shown by violations of two or more specified crimes, including the false statements or improper influence crimes mentioned above. Willis has experience prosecuting RICO cases, and her investigatory team includes a RICO expert.
If the district attorney brings charges, Trump’s lawyers will likely argue a variety of defenses that either downplay his conduct or seek to shield it from prosecution. These may include contentions that Trump has immunity, which generally protects federal officials from infringements on authorities vested in them by the Constitution and federal laws; that Trump’s outreach to Georgia officials is protected by the First Amendment; that charging him would amount to selective or retaliatory prosecution; or that he lacked the intent to commit wrongdoing because he genuinely believed he had won the election. We also consider the course of events if Trump were to seek to remove the case against him in Georgia to federal court, as well as the possibility that Trump might seek a preemptive pardon from state officials. Though these points warrant consideration, we find that they lack merit, and would not ultimately avail Trump.
It is critical to the integrity of our rule of law system, and our constitutional republic, that the investigation proceed, continuing to follow the facts and evidence. As Justice Kavanaugh noted in Trump v. Vance, “no one is above the law.” For much more information on all these points, the report may be found here.