Fani Willis Begins Criminal Investigation of Donald Trump
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As Impeachment Trial Resumes, Georgia District Attorney Begins Criminal Investigation of Trump’s Phone Call with Brad Raffensperger

Fani Willis

Fulton County, Georgia followed up its November and January Democratic wins Wednesday with yet another blow to former president Donald Trump. Atlanta prosecutors have announced the start of a criminal investigation into Trump’s attempts to overturn Georgia’s election results, including the infamous phone call with Georgia’s Republican Secretary of State Brad Raffensperger. During the call, Trump repeatedly demanded that Raffensperger “find” 11,780 votes to help Trump reverse his election loss in Georgia, then he followed up that demand with multiple threats as to the political and criminal consequences of noncompliance.

According to a Georgia official who wished to remain anonymous, newly-elected Democratic District Attorney Fani Willis sent a letter to numerous officials in Georgia state government, including Raffensperger, requesting the preservation of documents related to the Jan. 2 call; the official said Willis’ letter explicitly stated the request was part of a criminal investigation of “attempts to influence the actions of persons who were administering” the election.

As Law&Crime has discussed at length before, Trump’s phone call to Raffensperger may have opened him up to criminal liability under a number of federal and state statutes. The primary Georgia crimes in play relate to solicitation of Raffensperger, including criminal solicitation to commit election fraud, solicitation of willfully neglect or refusal to perform duty, solicitation of refusal by Secretary of State or his or her employee to permit public inspection of documents, removal, destruction, or alteration of documents, and solicitation of  intentional interference with performance of election duties.

Though Willis has several statutes on which to base any potential charges, her task likely will be a challenging one as the offenses most clearly tied to the Raffensperger phone call require proof of Trump’s intent. The evidence relating to Trump’s state of mind would likely consist of contextually-drawn inferences, unless there is some explicit admission that Trump intended to illegally interfere with election results. Of course, a jury might well conclude that Trump’s actions and statements both before and after the Raffensperger call prove that the former president intended election interference on a criminal level. Still, proof beyond a reasonable doubt might be a tall order.

Since Trump made the phone call, several advocacy groups, including Citizens for Responsibility and Ethics in Washington (CREW) have called upon Willis to start a criminal probe into Trump’s actions.

Following the news of the Georgia investigation, CREW tweeted, “You know your actions were really, really bad if you’re under investigation for one crime during your impeachment trial for another, separate crime.”

Willis’ criminal investigation has been initated just days after Secretary Raffensperger announced that his office will also begin a fact-finding inquiry into Trump’s actions.

Willis, a Black woman and daughter of a Black Panther, is the first woman to hold the job as top prosecutor in Fulton County, and has promised major reforms to come for her office. Since taking office in January, Willis has repeatedly made headlines not just for her involvement in the Trump investigation, but also for her handling of the controversial Rayshard Brooks case. Willis requested Georgia’s attorney general assign special prosecutors to investigate Atlanta police officers in Brooks’ death. Georgia Attorney General Chris Carr (R), however, refused Willis’ request Tuesday, sending the cases back to Willis’ office.

Willis’ investigation in Georgia begins as New York State Trump investigations led by New York Attorney General Letitia James (D) and Manhattan DA Cy Vance (D) march on. These investigations deal with different stakes, facts and circumstances, but the Vance case poses similar risks to the former president.

President Joe Biden, who has said he would not push for a Trump prosecution, has no power to halt state-level investigations or to pardon Trump for state crimes. New York State has recently amended its double-jeopardy law specifically to ensure that Trump and his associates do not have procedural defenses available to them. Under Georgia law, Trump could not appeal to Republican Governor Brian Kemp for a state pardon, because pardons can be granted only by the state board of pardons and paroles.

[screengrab via FultonCounty.gov]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos