“We find by unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning that election.” With those words, a Fulton County special grand jury’s report, part of which was released Thursday, repudiated Donald Trump’s assault on our democracy.
The excerpts from the report did not explicitly offer new detail on a potential indictment of Mr. Trump or any other individual. But they suggest that, combined with everything else we know, Mr. Trump may very well be headed for charges in Georgia.
We need to prepare for a first in our 246-year history as a nation: The possible criminal prosecution of a former president.
If Mr. Trump is charged, it will be difficult and at times even perilous for American democracy — but it is necessary to deter him and others from future attempted coups.
Fani Willis, the Fulton County district attorney, may present the case as a simple and streamlined one or in a more sweeping fashion. Success is more likely assured in the simpler approach, but the fact that the redacted report has eight sections suggests a broader approach is conceivable. In either event, we must all prepare ourselves for what could be years of drama, with the pretrial, trial and appeal likely dominating the coming election season.
Ms. Willis opened her investigation shortly after Mr. Trump’s Jan. 2, 2021, demand that the Georgia secretary of state, Brad Raffensperger, “find 11,780 votes.” The second impeachment of Mr. Trump and the Jan. 6 committee hearings developed additional evidence about that request for fake votes and Mr. Trump and allies pushing fake electors in Georgia and nationally. There is now abundant evidence suggesting he violated Georgia statutes, like those criminalizing the solicitation of election fraud.
The parts of the special grand jury’s report revealed on Thursday only reinforce Mr. Trump’s risk of prosecution. The statement that the grand jurors found “no widespread fraud” in the presidential election eliminates Mr. Trump’s assertion that voter fraud justified his pushing state election officials. We also know that the grand jurors voted defendant by defendant and juror by juror, and set forth their recommendations on indictments and relevant statutes over seven (currently redacted) sections. The likelihood that they did that and cleared everyone is very low. And the fact that the grand jurors felt so strongly about the issues that they insisted on writing the recommendations themselves, as they emphasize, further suggests a grave purpose.
Also notable is the grand jury’s recommendation of indictments, “where the evidence is compelling,” for perjury that may have been committed by one or more witnesses. It seems unlikely that Ms. Willis will let that pass.
She will now decide the next steps of the case. Her statement that charging decisions were imminent came more than three weeks ago. If she does indict Mr. Trump, the two likely paths that she might take focus on the fake electoral slates and Mr. Trump’s call to Mr. Raffensperger. One is a narrower case that would likely take weeks to try; the other is a broader case that would likely take months.
Narrow charges could include the Georgia felonies of solicitation of election fraud in the first degree and related general crimes like conspiracy to commit election fraud, specifically focusing on events and people who have a strong nexus with Georgia. In addition to Mr. Trump, that might include others who had direct contacts with Georgia, like his former chief of staff Mark Meadows and his attorneys John C. Eastman and Rudolph W. Giuliani (who already received a “target” notification from Ms. Willis warning him that he may be charged). Such a case would focus on activities around the execution of the fake electoral slates on Dec. 14, 2020, followed by the conversation with Mr. Raffensperger on Jan. 2, rooting it in Georgia and avoiding events nationally except to the extent absolutely necessary.
Or Ms. Willis could charge the case more broadly, adding sweeping state Racketeer Influenced and Corrupt Organizations, or RICO, charges that could still include the impact of the conduct in Georgia but bring in more of a nationwide conspiracy. This would look more like the Jan. 6 investigation, albeit with a strong Georgia flavor. It could additionally include those who appeared to have lesser contact with Georgia but were part of national efforts including the state, like the Trump campaign attorney Kenneth Chesebro and the Justice Department official Jeffrey Clark.
A more narrow case might make slightly more sense: Given the extraordinary circumstances around it, Ms. Willis will surely have her hands full. And it will feature a likely lead defendant who has demonstrated his propensity for legal circuses — coming in the midst of a heated political season no less.
That said, Ms. Willis has a proven propensity for bringing and winning RICO cases. And as we have learned in our criminal trial work, sometimes juries are more responsive to grander narratives that command their attention — and outrage.
Whether it’s simple or broad, if a case is opened, one thing is nearly certain: It’s going to take a while, probably the better part of the next two years, and perhaps longer. We would surely see a flurry of legal filings from Mr. Trump, which while often meritless nevertheless take time. Here the battle would likely be waged around pretrial motions and appeals by Mr. Trump arguing, as he has done in other cases, that he was acting in his official presidential capacity and so is immune.
That challenge, though not persuasive at all in our view, will almost certainly delay a trial by months. Other likely sallies are that the case should be removed to federal court (it shouldn’t); that he relied on the advice of counsel in good faith (he didn’t); or that his action was protected by the First Amendment (it wasn’t).
Even if the courts work at the relatively rapid pace of other high-profile presidential cases, we would still be talking about months of delay. In both U.S. v. Nixon and Thompson v. Trump, about three months were consumed from the first filing of the cases to the final rejection of presidential arguments by the U.S. Supreme Court. In this case, there would be more issues, which would be likely to require additional time. At the earliest, Ms. Willis would be looking at a trial toward the end of 2023. Even on that aggressive schedule, appeals would not be concluded until the end of 2024 or beyond.
Needless to say, this would have a profound impact on the election season. It would feature a national conversation about what it means for a former president to be prosecuted, and it would no doubt have unexpected consequences.
Still, the debate is worth having, and the risks are worth taking. The core American idea is that no one is above the law. If there is serious evidence of crimes, then a former president should face the same consequences as anyone else. If we do not hold accountable those who engage in this kind of misconduct, it will recur.
It would be the trial of the 21st century, no doubt a long and bumpy ride — but a necessary one for American democracy.
Norman Eisen was special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. E. Danya Perry is a former federal prosecutor and New York State corruption investigator. Amy Lee Copeland, a former federal prosecutor, is a criminal defense and appellate attorney in Savannah, Ga.
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