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Opinion The Georgia investigation remains Trump’s biggest problem yet

Fani Willis, district attorney for Fulton County, Ga., among boxes containing thousands of cases at her office in Atlanta. (John Bazemore/AP)

Donald Trump’s greatest criminal vulnerability has always been in Georgia. That’s where prosecutors are investigating the defeated former president for pressuring Secretary of State Brad Raffensperger (on tape!) to “find” just enough votes to swing the state to him and for intimating that the Georgia official might face criminal peril if he refused.

Unfortunately for Trump, the risk of prosecution is only getting worse.

The Atlanta Journal-Constitution reported on Tuesday that a Fulton County, Ga., grand jury issued subpoenas for Trump’s lawyer Rudy Giuliani as well as “John Eastman, Cleta Mitchell, Kenneth Chesebro and Jenna Ellis, all of whom advised the Trump campaign on strategies for overturning Democrat Joe Biden’s wins in Georgia and other swing states.” Sen. Lindsey O. Graham (R-S.C.), who allegedly made his own inquiries to Georgia officials, and podcast host Jacki Pick Deason also received subpoenas.

Norman Eisen, who served as special counsel for the House Judiciary Committee during Trump’s first impeachment, tells me that this “rogues’ gallery” of lawyers may provide yet unheard critical evidence. He notes that Fani Willis, the Fulton County district attorney leading the investigation, seems to have “completed the in-state portion of her special grand jury investigation" and may now be moving “to take evidence from those outside of Georgia who may have participated in the alleged conspiracy targeting Georgia voters and electors.” She appears to be moving ahead of the House select committee investigating the Jan. 6, 2021, insurrection and the Justice Department.

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In addition to all these witnesses, Willis and the grand jury will soon have access to the entire body of information gathered by the Jan. 6 committee, including prior witness interviews, phone records and live testimony. The Justice Department will likely share evidence or even provide technical assistance to local prosecutors. (One basis for the Justice Department to decline to prosecute an individual is because another jurisdiction may do so; if so, the feds are obliged to “coordinate with those authorities as appropriate.”)

“The suspense is essentially over,” constitutional scholar Laurence Tribe tells me about the subpoenas. Willis “seems poised to take on the ringleader in a racketeering scheme to steal Georgia’s 16 electoral votes.” He says that will likely be “the first indictment of a former president, who committed the crime on tape for all to hear.”

Giuliani may be the most at risk after Trump, given that, as the Journal-Constitution reported, he has made “sensationalist claims and conspiracy theories about tens of thousands of people voting illegally and rigged voting machines that were quickly debunked by state authorities or rejected in the courts.” These sorts of false claims of fraud led a New York court to suspend Giuliani’s law license.

There is no guarantee these figures will testify, since many likely have a Fifth Amendment claim against self-incrimination. Some may also try to invoke attorney-client privilege, though federal District Court Judge David Carter has already ruled in a related case that Eastman had no such privilege because of the fraud-crime exception, requiring Eastman to provide documents to the Jan. 6 committee

This tranche of subpoenas marks an ominous turn for Trump. Leah Litman, a professor at University of Michigan Law School, tells me that “the subpoenas confirm that people understand what the Jan. 6 Committee hearings have revealed: The effort to overturn the election was a coordinated campaign that included high-level Republican officials.” She adds, “It is easy to dismiss the mobster-like phone calls and insane claims of missing ballots as evidence of bumbling wannabe autocrats or mobsters. But failed coups look silly until they succeed.”

Willis has several legal theories to pursue against Trump and his cronies, including criminal solicitation to commit election fraud, conspiracy to commit election fraud and intentional interference with performance of election duties. If the district attorney can show “repeated violations of law by an enterprise” (e.g., the Trump campaign), prosecution under the state racketeering statute might also be possible.

Given the finite set of facts and easy-to-understand statutes, the pack of witnesses who might cooperate and a taped recording (hardly ever available to prosecutors), it may well be easier and certainly quicker to bring discrete state charges against Trump than it would be to present the entire coup plot in federal court months from now. (Attorney General Merrick Garland can continue to anguish over the prospect of indicting a former president and later bring federal charges concerning other aspects of the coup attempt.)

At the very least, Willis’s fast-developing investigation underscores that, regardless of whether Trump truly believed he won the election, he was not allowed to pressure state officials to “find 11,780 votes” that did not exist. That is why Trump is at serious risk in Georgia — and perhaps in other states where he allegedly engaged in similar conduct.

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