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https://www.washingtonpost.com/nation/2023/06/02/trump-georgia-election-investigation-fulton-county/
An Atlanta-area investigation of alleged election interference by President Donald Trump and his allies has broadened to include activities in D.C. and several states, according to two people with knowledge of the probe — a fresh sign that prosecutors may be building a sprawling case under Georgia’s racketeering laws.
Fulton County District Attorney Fani T. Willis (D) launched an investigation more than two years ago to examine efforts by Trump and his allies to overturn his narrow 2020 defeat in Georgia. Along the way, she has signaled publicly that she may use Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) statute to allege that these efforts amounted to a far-reaching criminal scheme.
In recent days, Willis has sought information related to the Trump campaign hiring two firms to find voter fraud across the United States and then burying their findings when they did not find it, allegations that reach beyond Georgia’s borders, said the two individuals, who spoke on the condition of anonymity to talk candidly about the investigation. At least one of the firms has been subpoenaed by Fulton County investigators.
Willis’s investigation is separate from the one at the Justice Department being led by special counsel Jack Smith, but the two probes have covered some of the same ground. Willis has said she plans to make a charging decision this summer, and she has indicated that such an announcement could come in early August. She has faced stiff criticism from Republicans for investigating the former president, and the ever-widening scope suggests just how ambitious her plans may be.
The state’s RICO statute is among the most expansive in the nation, allowing prosecutors to build racketeering cases around violations of both state and federal laws — and even activities in other states. If Willis does allege a multistate racketeering scheme with Trump at its center, the case could test the bounds of the controversial law and make history in the process. The statute calls for penalties of up to 20 years in prison.
“Georgia’s RICO statute is basically two specified criminal acts that have to be part of a pattern of behavior done with the same intent or to achieve a common result or that have distinguishing characteristics,” said John Malcolm, a former Atlanta-based federal prosecutor who is now a constitutional scholar at the conservative Heritage Foundation. “That’s it. It’s very broad. That doesn’t mean it’s appropriate to charge a former president, but that also doesn’t mean she can’t do it or won’t do it.”
Among Willis’s latest areas of scrutiny is the Trump campaign’s expenditure of more than $1 million on two firms to study whether electoral fraud occurred in the 2020 election, the two individuals said. The Post first reported earlier this year that the work was carried out in the final weeks of 2020, and that the campaign never released the findings because the firms, Simpatico Software Systems and Berkeley Research Group, disputed many of Trump’s theories and could not offer any proof that he was the rightful winner of the election.
In recent days, Willis’s office has asked both firms for information — not only about Georgia but about other states as well. Trump contested the 2020 election results in Georgia, Arizona, Michigan, Nevada, Pennsylvania and Wisconsin.
Ken Block, the CEO of Simpatico Software Systems, declined to comment on what he has turned over to investigators. A lawyer for the Berkeley Research Group also declined to comment. A spokesman for Willis declined to comment on the investigation. Lawyers for Trump also declined to comment.
It is unclear if Willis will seek indictments of people for alleged actions that occurred outside Georgia, such as those who participated in the Jan. 6, 2021, attack on the U.S. Capitol. RICO experts say it’s unlikely she will do so. But, these experts said, the law allows Willis to build a sweeping narrative of an alleged pattern of behavior to overturn the 2020 election, with Georgia as just one piece. Evidence and actions outside the state, such as Trump’s statements from Washington that inspired some of the rioters and the parallel efforts to overturn other states’ results, could be presented as additional evidence that helps establish that pattern.
“The Georgia statute is broadly written” to allow the inclusion of violations of federal law as well as some other states’ laws, said Morgan Cloud, a law professor at Emory University in Atlanta and expert on the state’s RICO law. “For example, acts to obstruct justice committed in Arizona might be relevant if the goal of the enterprise, of the racketeering activity, was to overturn the 2020 presidential election nationally, as well as in Georgia.”
Cloud added that prosecutors in Georgia must prove only that two racketeering crimes occurred under the state RICO statute, but that other facts could be used to explain the breadth of an alleged scheme.
An ambitious prosecution
Willis’s investigation has already come under scrutiny as a test of applying state criminal laws to actions that revolved around a federal election — and that in many instances resembled constitutionally protected speech. The probe has prompted a debate, even among those who believe Trump’s efforts were improper, as to whether prosecutors will be able to prove that Georgia crimes were committed.
Her potentially sweeping application of Georgia’s RICO statute could amplify those questions. RICO allows prosecutors to target leaders of alleged criminal enterprises who in previous generations eluded convictions. In Georgia, it can be applied to many patterns of activity that are crimes under state or federal law, such as dogfighting or drug dealing, obstruction or conspiracy — going far beyond its origins as a tool to fight organized crime.
Several legal experts said they expect Willis to home in on possible false statements by Trump and his allies to government officials — one of the crimes that can be prosecuted under Georgia’s RICO statute.
In 2015, Willis attracted national attention as a deputy district attorney by using RICO to prosecute a massive cheating scandal in Atlanta’s public schools that sent eight teachers and administrators to prison.
Prosecutors in Georgia have obtained RICO convictions where the pattern of racketeering activity included actions in other states. In one notable case, prosecutors in Richmond County got convictions for several men they accused of kidnapping a Sam’s Club manager in a robbery scheme in 1998, stuffing him into the trunk of a car, driving to South Carolina and killing him by setting the car on fire.
In the Trump case, Willis has said she is focused on the phone calls Trump made to multiple Georgia officials seeking to reverse his defeat, his campaign’s efforts to persuade the Georgia legislature to declare Trump the winner, the gathering of Trump’s electors to cast electoral college votes for Trump after Joe Biden had been declared the winner in the state, and the Trump campaign’s potential involvement in an unauthorized breach of election equipment in rural Coffee County, Ga.
Dozens of people participated in those efforts, according to reams of emails, texts and deposition transcripts from the House investigation into the Jan. 6 attack: Trump lawyers such as Rudy Giuliani, Jenna Ellis, Sidney Powell, Ray Smith and John Eastman; senior advisers including then-White House Chief of Staff Mark Meadows; Jeffrey Clark, then a senior official at the Justice Department; and Georgia GOP leaders including the party chairman, David Shafer, and its then finance chairman, Shawn Still.
Multiple legal experts have said persuading a jury that those actions broke the law could prove difficult. The debate reflects the unprecedented nature of Trump’s attempt to overturn the 2020 election. While the effort immediately prompted calls to hold him and others criminally responsible, identifying laws that apply to such a scenario has proved challenging — and could help explain why Willis’s investigation is in its third year. That dynamic applies both to the Georgia investigation as well as the special counsel’s federal probe.
Most of those scrutinized in the Willis investigation have maintained that they did nothing wrong. They had every right to pursue claims of anomalies, many have said, particularly given how close Biden’s margin of victory was in Georgia, two-tenths of 1 percent.
“There’s not a single thing that I did in pursuit of election integrity that I have any regret or concern about,” Shafer said in a recent GOP address.
“It’s dangerous,” said Malcolm, the Heritage scholar, referring to the investigation in Georgia of contingent electors. “What you’re doing is tainting political activists who are trying to play a part in an election, who are trying to help their candidate, and all of a sudden you’re launching a criminal investigation.”
Norm Eisen, who served as special counsel to the House of Representatives’ first impeachment of Trump, over his pressure campaign with Ukraine, cautioned that it’s too soon to judge the investigation, but said he believes the overall case is a “strong one.”
“Either skepticism or belief is premature because we are not privy to all the evidence that the district attorney has amassed at this point,” said Eisen, a criminal defense attorney and senior fellow at the Brookings Institution. “It just depends on the evidence.”
Eisen was among the authors of a lengthy examination of the applicable law in the Fulton investigation, concluding that possible crimes, besides racketeering, included making false statements and conspiracy to commit election fraud.
Malcolm said he agrees with the report’s conclusion that Trump is at substantial risk of being charged. But he said he believes much of its analysis is “slanted and misguided.”
Trump’s call to Georgia
Willis launched her probe shortly after Trump’s Jan. 2, 2021, phone call to Georgia Secretary of State Brad Raffensperger (R), during which Trump said, “I just want to find 11,780 votes.” That number would have given Trump exactly the votes he needed to reverse Biden’s victory.
While Trump has been widely rebuked for that comment and others during the roughly one-hour call, it’s unclear to some legal analysts if uttering those words broke the law.
Trump did not spell out that he wanted Raffensperger to break the law; nor did he directly ask the state official to find the votes, which might have given Willis a clearer path to seek a felony charge against him, such as solicitation to commit election fraud. Instead, the comment could be interpreted as the president simply spelling out the math that would allow him to reverse Biden’s victory.
Trump may have hurt himself, however, in his appearance last month at a town hall broadcast by CNN, during which he explained that he called Raffensperger to tell him, “You owe me votes because the election was rigged.” Willis could offer the statement as evidence of Trump’s intent for Raffensperger to switch votes, several legal experts said.
“Subjects of criminal investigation aren’t usually reckless enough to go on national television and admit their corrupt intent,” Anthony Michael Kreis, a constitutional law professor at Georgia State University, wrote on Twitter after the appearance. “But Donald Trump just handed Fani Willis a new piece of evidence and tied a bow on it.”
Willis has also investigated appearances by Giuliani and other Trump allies before Georgia lawmakers in the days immediately after the 2020 election, during which they described fantastical conspiracies of voting machines swapping Trump votes for Biden votes and poll workers in Atlanta triple-counting suitcases full of ballots.
It’s a felony in Georgia to make a false statement in a government matter, but Willis must prove that Giuliani and the others knew that what they were saying was false. Giuliani was not speaking under oath, so there is no exposure for perjury charges, and some legal experts say he might also be protected under the First Amendment.
Willis may also examine the actions of Clark, then the acting assistant attorney general for the Justice Department’s civil division, who wanted to send a letter to Georgia Gov. Brian Kemp (R) and state legislative leaders falsely claiming that the department was investigating “significant concerns” in the 2020 election, and urging them to call a special session of the General Assembly to appoint Trump’s electors to cast Georgia’s electoral college votes. Senior Justice Department officials blocked Clark from sending the draft.
Whether the Republican electors who convened to cast electoral college votes for Trump on Dec. 14, 2020, broke the law is perhaps even murkier.
Georgia was among seven states where the Trump campaign and local GOP officials arranged for alternate electors to convene with the stated purpose of preserving legal recourse while an election challenge made its way through the courts. Willis has offered some form of immunity to 12 of the 16 electors, according to three individuals with knowledge of the investigation. Not counted among those with immunity are Still, now a Georgia state senator, and Shafer.
Shafer helped organize the meeting and presided over it. Still has been described in news reports as having blocked members of the media from entering the room before the meeting started. Prosecutors have apparently focused on those activities in their questions to various witnesses, according to three other people with knowledge of the interviews. Prosecutors have also inquired about who mailed the electoral certificates to Washington, they said.
One of Shafer’s lawyers, Holly Pierson, wrote in a letter to Willis that Shafer had no knowledge that Trump allies would propose, later in December, to use the alternate elector certificates to block the counting of electoral votes for Biden in the Jan. 6 joint session of Congress. It is not even clear if the plan to thwart the joint session had been hatched by Dec. 14, 2020, the day the electors met. The House committee did not refer Shafer or Still to the Justice Department for federal prosecution. Pierson declined to comment.
As the nation waits to see what, if any, charges Willis will seek, one key question is what evidence she has gathered that Trump, his campaign or allies knew about all the different efforts to reverse Biden’s victory. And that’s just the first step — getting to trial and persuading a jury may present even more formidable challenges.
“Proving all this beyond a reasonable doubt,” Kreis said, “that’s going to be the hard part.”