Opinion 4 questions soon to be answered in Georgia’s probe against Trump

Fulton County District Attorney Fani Willis, right, talks with a member of her team during court proceedings in May. (Ben Gray/AP)
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Buckle up. I fully expect Donald Trump will face criminal indictment in Georgia in the next few weeks.

Superior Court Judge Robert McBurney of Fulton County, Ga., on Monday dissolved the special grand jury investigating whether the former president and his cronies committed crimes while pressuring state officials to overturn the state’s 2020 election results. The special grand jury will soon issue a report with its recommendations for indictments.

It will then be up to District Attorney Fani Willis to decide whether to present a case against Trump and others to a regular grand jury. Should she do so, the grand jury will likely issue charges. All of this could take place by the end of the month.

Willis has broadly hinted that she is going after Trump. Indeed, after six months of investigation and numerous court challenges against the inquiry, it would be shocking for her to conclude, “Nothing here.”

Here are four questions going forward:


Who will be indicted?

The best indicator of who’s at risk in addition to Trump comes from the House Jan. 6 select committee’s report. Former White House chief of staff Mark Meadows, who traveled to Georgia to pressure election officials, and John Eastman, the architect of the phony elector scheme, are the most likely Trump allies to face charges. (Recall that District Court Judge David Carter found in a civil case that Eastman likely committed crimes along with Trump.)

Trump lawyer Rudy Giuliani also received a target letter from the district attorney indicating he was a subject of the investigation. He was directly involved in the phony-elector scheme, going so far as to testify before Georgia’s legislative committees. He’s likely to face charges as well.

Then there’s Jeffrey Clark, the former Justice Department official angling to become acting attorney general at the end of the Trump administration. He drafted the Justice Department letter that Trump sought to send to Georgia and other states falsely declaring the election was fraudulent. He would be as intimately connected to any criminal actions as Meadows and Eastman, but the question remains whether he has a sufficient nexus to Georgia for the state to assert jurisdiction. This would likely be a fact-based assessment as to whether he communicated directly with Georgia officials.

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Finally, David Shafer, the head of the Georgia Republican Party who helped organize the phony-elector scheme, could be charged for presiding over a meeting on Dec. 14 and enlisting phony electors to affix their names to a declaration to be sent to the National Archives. Though all those phony electors received target letters, it is far from clear that Willis will indict them, especially if they cooperated.


Who flips against Trump?

If a key player is not indicted, that could be a sign that person is cooperating with prosecutors, which would be a legal nightmare for the former president. But Willis might find it hard to strike immunity deals with witnesses who are targets in federal investigations because testimony they give in state court could be used against them in federal trials.

If multiple fake electors avoid indictment, it might mean the public will see a new level of detail to which the Jan. 6 committee did not have access. Moreover, unless Sen. Lindsey O. Graham (R-S.C.) pleaded the Fifth Amendment when he testified before the Georgia grand jury, new information is likely to emerge about his interactions with Trump that prompted his own calls to Georgia officials.


What charges, if any, will be filed against Trump?

There are two approaches prosecutors might take. In a “kitchen sink” approach, the prosecutor throws every conceivable charge against a defendant to suggest he or she engaged in a veritable crime spree. Alternatively, the prosecutor could take a laser-focused approach, presenting only the cleanest, simplest charges to avoid confusing the jury and subjecting them to a long trial.

In this case, a slimmer indictment would stick to basic charges, such as interference with elections, intentional interference with performance of election duties; solicitation to commit election fraud, or conspiracy to commit election fraud.

A kitchen-sink indictment would include those charges as well as state racketeering charges to cast the Trump campaign as a criminal enterprise. As the Brookings Institution explained, the state’s racketeering statute “recognizes that if violations of individual criminal statutes by a single person are bad, an enterprise that repeatedly violates the law is worse and should be subject to additional sanction. The statute requires a ‘pattern’ of misconduct, as shown by violations of two or more of a long list of specified crimes.”


What’s the response to indictments?

Trump’s counsel might try to move the case to federal court under a statute that allows federal officers or agencies “acting under color of office” to move a criminal state case into federal court. The case could still proceed, just in federal court.

The purpose of this would be to get a wider jury pool beyond heavily Democratic Fulton County and to chew up time. If that happens, Willis would have to decide whether to battle the removal or simply get on with the prosecution in federal court.

The gambit would likely fail for many reasons: Trump is not currently an “officer,” nor was he one as president. Plus, overthrowing an election is not an action “under color of such office.”

More interesting than the legal maneuvering will be the reaction from the public and the MAGA crowd. Beyond Trump’s hardcore base, we will find out how devoted average Republicans remain to Trump. Perhaps MAGA lawmakers will go ballistic and attempt to incite a mob. Or perhaps Republicans will see Trump’s legal jeopardy as a relief and let justice run its course.

For example, Florida Gov. Ron DeSantis, widely considered Trump’s top rival for the GOP presidential nomination in 2024, might lead the angry mob. Or he might raise a perfunctory rumpus — and then gleefully extradite him to Georgia.