Georgia DA More Likely to Indict Trump; “Most Significant Legal Threat” Says THE HILL
WASHINGTON, D.C. (July 23, 2022) -“An Atlanta-area prosecutor’s investigation into former President Trump’s effort to overturn his 2020 electoral defeat in Georgia poses the most significant legal threat to the former president, legal experts say,” reports THE HILL, notes public interest law professor John Banzhaf, whose detailed complaint triggered the current criminal investigation of Donald Trump, including the issuance of subpoenas for many close to Donald Trump by a special grand jury.
Subsequently, a New York judge ordered Rudy Giuliani, Trump’s attorney and close associate, to testify Aug. 9 before the special grand jury, and a Fulton County Superior Court judge refused to quash subpoenas to the 11 “alternate electors” who tried to fight their appearances.
“The steps her office has taken, including empaneling a special grand jury and subpoenaing high-profile witnesses, are very likely not steps she would have taken if she did not feel there was at least a significant possibility that she will move forward with charges,” said one expert, who added that “the stakes in holding Trump accountable for an attack on our democratic system of government couldn’t be higher, and the evidence is extremely compelling.”
Professor Banzhaf has also cited many additional reasons, including the predictions of many experts that Fulton County DC Fani Willis will be the first to indict Donald Trump.
As the law professor previously noted, the special grand jury investigating Trump and others regarding criminal interference in the 2020 elections has persuaded a judge to issue subpoenas to compel the testimony under oath of many close collaborators in the alleged criminal schemes, indicating that prosecutors are getting closer to Trump and to his own criminal involvement.
This is still another indication that Fulton County, Georgia DA Fani Willis may be the first (and perhaps only) prosecutor to indict Trump, suggests Banzhaf, whose criminal complaint triggered her investigation, and who also played a role in obtaining special prosecutors for former president Richard Nixon, and finally bringing former Vice President Spiro Agnew to justice.
Banzhaf notes that Willis has already officially reported that evidence gathered earlier, including that filed with her office by the law professor, indicated “a reasonable probability that the State of Georgia’s administration of elections in 2020, including the State’s election of the President of the United States, was subject to possible criminal disruptions.”
Previously Willis had promised that “anyone who violates the law will be prosecuted, no matter what their social status is. No matter what their economics are, no matter what their race or gender is. We are not going to treat anyone differently.”She has also announced that the grant jury plans to issue additional subpoenas to people in Trump’s “inner circle,” and that she hasn’t ruled out even issuing one to Trump.
Banzhaf has just filed additional evidence and analysis with Willis which might help strengthen what appears to be an already strong criminal case against Trump.
The subpoenas, which had to be approved by Judge Robert McBurney because those being compelled to testify reside outside Georgia, include key members of Trump’s legal team, including his personal lawyer Rudy Giuliani.
Other subpoenaed key members of Trump’s legal team, who advised him about how to get around the official election results, include John Eastman, Cleta Mitchell, Kenneth Chesebro, and Jenna Ellis.
In an unusual move, U.S. Senator Lindsey Graham was also subpoenaed to testify because he, like Trump, called Georgia’s secretary of state and his staff at least twice “about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” his subpoena alleges. Graham‘s lawyer have announced that they will challenge his subpoena.
It’s customary, and usually the best practice, to interview and lock in the testimony of “smaller fish” in a criminal investigation before prosecutors work towards those higher ups who also participated, says Banzhaf.
With this arrangement, prosecutors can offer immunity, in exchange for damaging testimony – and sometimes also incriminating documents – to people whose culpability is smaller, and also obtain important information to use when they finally force those who culpability is higher [“bigger fish”] to answer questions under oath.
So moving on to Giuliani, Graham, and others very close to Trump strongly suggests that the investigation is about to come to an end, possible with an indictment of Trump, predicts Banzhaf.
Others agree.For example, Laurence Tribe, professor emeritus of constitutional law at Harvard University, wrote “It wouldn’t surprise me for Georgia to become the first jurisdiction to indict a former president on felony charges. And I think the charges will stick.”
Serious Prospect Of Prosecution
“The most serious prospect of prosecution” that Trump faces is in Fulton County, Georgia, reported the New York Times recently in an Op-Ed by two experienced prosecutors (one Democrat and one Republican); a conclusion reinforcing an earlier 100-page analysis by seven legal experts who concluded that the former president faces a “substantial risk of possible state charges predicated on multiple crimes.”
As the two former prosecutors concluded, DA Fani “Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing.. . . She has a demonstrated record of courage and of conviction. She has taken on — and convicted — a politically powerful group, Atlanta’s teachers, as the lead prosecutor in the city’s teacher cheating scandal. And she is playing with a strong hand in this investigation. The evidentiary record of Mr. Trump’s post-election efforts in Georgia is compelling.”
The piece also noted that, important as congressional investigations are, Willis’s work may present the most serious prospect of prosecution that Trump and his enablers are facing.
The recently begun investigation, by a special grand jury, of Trump’s telephone call seeking to pressure Secretary of State Brad Raffensperger and others to change Georgia‘s presidential vote tallies, is especially important at this time because Manhattan District Attorney Alvin Bragg has seemingly folded, and will not pursue criminal charges against Trump, notes Banzhaf.
The other remaining major investigation – of whether Trump can be criminally charged with inciting the January 6th riot – presents many legal and other problems, including a major Free Speech constitutional defense, which are not present if Willis proceeds with her promise to punish all those involved in attempting to corruptly change the result of the state’s election returns.
Indeed, she has a statute at her disposal seemingly meant for this very purpose and fitting these very facts.As the New York Times piece explains:
“What’s more, Georgia criminal law is some of the most favorable in the country for getting at Mr. Trump’s alleged misconduct. For example, there is a Georgia law on the books expressly forbidding just what Mr. Trump apparently did in Ms. Willis’s jurisdiction: solicitation of election fraud. Under this statute [ GA Code § 21-2-604], a person commits criminal solicitation of election fraud when he or she intentionally ‘solicits, requests, commands, importunes or otherwise attempts to cause’ another person to engage in election fraud.”
Banzhaf’s complaint to Willis also charged Trump with violating two additional criminal statutes: GA Code § 21-2-603 – Conspiracy to Commit Election Fraud, and also GA Code § 21-2-597 – Intentional Interference With Performance of Election Duties.
An Indictment Against Trump
The law professor suggests that the investigation by Willis is more likely to return an indictment against Trump than the other major investigation by the Department of Justice which is investigating whether it can and should indict him for his role in allegedly inciting a riot on January 6th.Here are four reasons why.
FIRST, he says, the evidence in Georgia is clear and uncomplicated, unlike the words of Trump’s January speech which many see as ambiguous, and where prosecutors might have to argue from possible inferences.
In the Georgia case the language of Trump’s telephone call to is very precise in its demands, the tone on the audio recording shows that Trump was not joking or speaking in generalities, others who listened to the call undoubtedly made notes and passed some of them to Trump, and there is ample supplemental evidence of Trump’s criminal intent to affect the election results.
The fact that Trump, in a position to direct the Department of Justice, specifically mentioned possible criminal penalties if his wishes were not granted, and had others in his camp place similar calls, provides overwhelming evidence of his criminal intent, concludes Banzhaf, who notes that many other criminal law experts, including several very familiar with Georgia law, have publicly announced that they have reached the same conclusion.
SECOND, an indictment and trial in Georgia would not raise suspicion – and create very bad “optics” – of an incoming president seeking political retribution, and protection from competition in future elections, by trying to throw his opposition into prison.
Incoming presidents jailing their predecessors is what we and others around the world associate with tin-horn dictators in third-world countries with corrupt governments, not the U.S., Banzhaf argues.
Here it’s even worse, because polls indicate that Trump would be the strongest opponent of Joe Biden or of any other Democrat in the 2024 presidential race.So indicting him, much less putting him behind bars during this election, would be seen by many as a politically motivated prosecution.
Also, for many, it would seem unfair to invoke the full resources of the United States government against one person, even a rich and powerful one such as Trump.
A prosecution by a county DA would avoid all of these problems and perceptions, notes Banzhaf, so it might even have a greater chance of success, and of avoiding juror nullification at a trial.
THIRD, there is no free speech problem, as there would be in a criminal prosecution based upon Trump’s speech at the rally.
Under the Supreme Court’s Brandenburg ruling, the government may criminally punish someone for making a political speech only if it is “directed to inciting or producing IMMINENT lawless action and is LIKELY to incite or produce such action” – in other words, it must create a clear and present danger. [emphasis added]
But since considerable time elapsed between Trump’s speech and the lawless actions by his followers – enough time, for example, for authorities to have taken preventive steps if seemingly warranted – it’s not clear that the lawless action was “imminent” in the same sense of a hypothetical crowd being urged to “hang him now.”
More importantly, can it be said – much less proven beyond a reasonable doubt – that the statements were “likely” to provoke lawless action?
For example, at the time of the speeches, why didn’t various public and law enforcement officials issue clear warnings about possible lawlessness if his words were “likely to incite or produce violence”?If they didn’t, this suggests that even professionals may not have believed that lawless action was “likely” – not just possible or conceivable.In this regard, hindsight may be questionable, suspect, and not very persuasive, argues Banzhaf.
FINALLY, Willis plans to use Georgia’s RICO – its Racketeer Influenced and Corrupt Organizations Act – in any prosecution of Trump.
Banzhaf, who is familiar with the federal RICO statute since he produced the memo which led to the federal government’s successful RICO prosecution against the major tobacco companies, points out that the Georgia RICO statute is even more powerful and far reaching than the federal one.
Among other things, it defines racketeering more broadly than the federal law does, takes less to prove a pattern of racketeering activity, and does not always require the existence of an “enterprise” – especially an illegal or criminal enterprise – to constitute racketeering.Indeed, Willis successfully used RICO to prosecute a teacher-cheating case at a school.
Also, notes Banzhaf, although RICO requires at least two independent illegal racketeering activities – “predicate acts” – to prove a pattern of corruption by Trump and his alleged co-conspirators, making false statements such as Trump and some of his allies are alleged to have made would more than satisfy Georgia’s RICO law.
Racketeering, which is a felony in Georgia, can carry penalties of up to 20 years in prison, a hefty fine, and disgorgements of ill-gotten gains. Most felons in Georgia convicted of racketeering offenses do serve time in prison.