The Fulton County District Attorney Fani Willis, a Democrat, has focused on Trump’s conduct in the aftermath of the 2020 election. And like the federal investigation, she compelled a number of Trump allies and officials to appear before a special grand jury to give testimony. At one point, a state court judge barred Willis from targeting a state senator, now the lieutenant governor, after she held a fundraiser for his Democratic opponent who was running as a candidate for the same office. 

That incident is revealing about what might be Willis’ true motivations. 

We don’t know much about what evidence this special grand jury collected. Grand jury proceedings, by their nature, are secret, or at least should be. However, we did get a glimpse of what could be coming when the special grand jury’s forewoman gave a series of bizarre interviews hinting that it had recommended indicting multiple people. 

Under Georgia law, though, a different grand jury would decide which, if any, indictments to return. Likely charges would include conspiracy to commit election fraud (§21-2-603 of the Georgia Code) or soliciting others to commit election fraud (§21-2-604 of the Georgia Code). 

Racketeering? 

It has also been rumored that Trump might be charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act (§16-14-4 of the Georgia Code).  

Although modeled after the federal RICO statute, which was created to help combat traditional organized crime, the Georgia statute is significantly broader. For example, while the federal statute requires proof of continuity and an enterprise, the Georgia statute can be used to prosecute individuals who violate (including attempting or conspiring to violate) two or more of the 42 specifically delineated federal and state crimes (which are classified as “racketeering activity” and listed in §16-14-3) over a relatively short period of time “in furtherance of one or more incidents, schemes, or transactions that have the same or similar intent, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.”  

In other words, the two criminal acts have to be part of a pattern of behavior— not isolated acts— done with the same intent, to achieve a common result, or that have other distinguishing, interrelated characteristics. 

That “perfect call” 

The genesis of this investigation was an hourlong telephone call that transpired on Jan. 2, 2021, primarily between Trump and Georgia Secretary of State Brad Raffensperger.  

The accusations against Trump include directing Raffensperger to “find” votes for him in order to overturn the results of the election in that state. While the call was not “perfect,” as Trump claims, it’s also not at all clear from the transcript of that call that Trump was doing any such thing.  

If anything, it appears as though Trump was telling Raffensperger that all Trump’s attorneys had to do was “find” a sufficient number of votes in order to get the results overturned by a judge in one of the many pending cases that his lawyers had already filed in that state that contested the validity of the election and claimed that fraudulent votes had been submitted and that all of the legitimate ballots cast had not been properly counted. 

Trump might also be charged with lying— what the media has labeled “The Big Lie”—about the fact that the election was stolen. It’s not enough, however, to prove that Trump was wrong when he claimed that the election in Georgia (and elsewhere) had been stolen. Georgia prosecutors would have to prove that he knew he was wrong at the time and was, therefore, lying.  

While it’s clear that there were many people even within his administration who did not believe the election had been stolen and who were telling Trump that, it’s equally clear that there were other individuals that Trump trusted who were telling him that the election was stolen and that they would ultimately be able to prove that in court and in the court of public opinion. 

By relying on the latter group rather than the former, Trump might have been wrong, perhaps egregiously so, but that doesn’t mean that he was lying when he made those claims in the immediate aftermath of the election, or even today.  

Even though an indictment has not yet been returned, Trump’s attorney is already fighting back, having filed a lengthy document seeking to quash the special grand jury’s report, disqualify the Fulton County District Attorney’s Office from any further involvement, and preclude any prosecuting office from using any of the evidence that was presented to the special grand jury. 

Also deeply troubling is the fact that some of the people who have been designated as “targets” by Willis are local Republican Party activists who served as alternate or contingent electors— who opponents have labeled “fake” electors— for Trump.  

The idea of alternate electors isn’t new. It happened in 1876 and 1960, when the outcome of particular states’ presidential vote remained unclear. A slate of electors for each candidate met, cast their ballots for their preferred candidate, and waited for the dispute to be resolved.  

In 2000, then-Rep. Patsy Mink, D-Hawaii, suggested that then-Vice President Al Gore designate a slate of contingent electors who would vote in Florida while litigation in the aftermath of that election was ongoing in that state. If a slate of electors didn’t cast their ballots for Gore on the date prescribed by federal law, Gore wouldn’t have a remedy even if he eventually won his electoral challenge. Gore decided to concede on Dec. 13, five days before the electors met to officially cast their votes. 

Dangerous Precedent 

Were any of the alternate electors or Mink indicted for attempting to obstruct an election? Of course not. Only now, when these alternate electors— who opponents have labeled “fake” electors— cast their ballots for Trump have they been subjected to potential criminal liability.  

That’s a dangerous precedent to set. 

Party activists should be allowed— indeed, encouraged— to participate in the hurly-burly of the political process without having to worry about the criminal law being weaponized against them. 

Moreover, under §21-2-172 of the Georgia Code, the authority to choose electors is given to the “state party or body chairperson of such political party,” so members of the state Republican Party and its chairman appear to have been acting in compliance with state law in selecting a group of contingent electors as a backup in case any of the election contests were successful in court. Ditto for the candidate and campaign for which those electors cast their ballots. 

This is all, of course, completely unprecedented. Never has a former president, much less one who is currently running to regain his old office, been charged with a crime.  

While we must wait to see what evidence prosecutors have marshaled to support their charges, it seems clear that the only reason Trump was the focus of these investigations in the first place is because of who he is— not necessarily because of the severity of any violations.  

John Malcolm is director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation, Hans von Spakovsky is the manager of the Heritage Foundation’s Election Law Reform Institute and Zack Smith is a legal fellow with Heritage’s Meese Center. We publish excerpts of their column that originally appeared in The Daily Signal. 

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