The investigation into Donald Trump’s attempts to pressure election officials in Georgia to help overturn the state’s 2020 results has always been the most direct threat to the former president. The potential crimes involve a discrete set of facts, and state prosecutors have a tape of Trump pleading with officials to “find” just enough votes for him to win. Plus, a grand jury has already summoned people to testify to the plot to devise a slate of phony electors.
The investigation became even more ominous for Trump on Monday. The Post reports: “A team of computer experts directed by lawyers allied with President Donald Trump copied sensitive data from election systems in Georgia as part of a secretive, multistate effort to access voting equipment that was broader, more organized and more successful than previously reported.”
The Post also reported on Monday that Fani T. Willis, the district attorney for Fulton County, Ga., notified attorneys for Rudy Giuliani that the former Trump lawyer is a target of the ongoing probe.
This is a significant step for Willis. Barbara McQuade, a former federal prosecutor, tells me, “Prosecutors will notify a witness when he is a target of an investigation not to threaten him but to permit him to make an informed decision about invoking his Fifth Amendment rights against self-incrimination.”
While Giuliani may choose to assert his Fifth Amendment rights, statements from his attorneys suggest he might instead attempt to argue that he is shielded from testifying by attorney-client privilege. But that notion is flawed, since any scheming between him and Trump would almost certainly fall within the fraud-crime exception.
Giuliani’s deteriorating legal position should come as no surprise given the facts uncovered in the House Jan. 6 committee hearings. Norman Eisen, who served as co-counsel for the House Judiciary Committee during Trump’s first impeachment hearings, tells me, “In law as in life, there are consequences for bad acts, and Giuliani is now facing them. Giuliani was intimately involved in Trump’s illegitimate efforts to overturn the Georgia election, and the facts and the law support the DA informing him that he is a target.” In other words, Eisen says, Willis seems to have “substantial evidence that he committed crimes.”
If Giuliani is a target, Trump almost certainly is a target as well, or will be soon. Eisen observes, “They are too intertwined factually and legally in the attempt to use fake electors and other means to attack the Georgia outcome.” Eisen says he expects Trump to receive a target letter similar to Giuliani’s because “he is powerfully implicated by the publicly available facts and the law.”
In a related matter, Sen. Lindsey O. Graham (R-S.C.), who allegedly made inquiries of his own to Georgia officials about the election results, just lost his bid to escape testifying. Federal District Court Judge Leigh Martin May ruled Monday that there is “a special need for Mr. Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.” May rejected the excuse that Graham was engaged in some legislative fact-finding, instead concluding his activities were in the “political realm.”
Graham can try to appeal the decision, but he is likely to face a choice of his own: plead the Fifth, cooperate or face contempt charges.
Eisen and a group of legal experts recently laid out potential pathways to criminal charges against Trump and his associates in a report for the Brookings Institution. In the Georgia case, those charges could include criminal solicitation to commit election fraud, interference with an official’s performance of his duties, conspiracy to commit election fraud, and violation of the state’s racketeering statute.
Trump’s legal predicament in Georgia gets stickier by the minute. Considering there is no presidential power to pardon someone for state crimes, he must be mulling the million-dollar question: How long before Rudy strikes a deal?