An Atlanta-area prosecutor’s investigation into former President Trump’s effort to overturn his 2020 electoral defeat in Georgia poses the most significant legal threat to the former president, legal experts say, with the probe intensifying as Trump eyes a 2024 bid for the White House.
The former president’s team is keeping close watch on Fulton County District Attorney Fani Willis’s investigation, even as it remains unclear whether Trump himself would face charges, according to one source, who noted that recent subpoenas issued to close Trump advisers Rudy Giuliani and Sen. Lindsey Graham (R-S.C.) had heightened concerns in Trump World.
“The steps her office has taken, including empaneling a special grand jury and subpoenaing high-profile witnesses, are very likely not steps she would have taken if she did not feel there was at least a significant possibility that she will move forward with charges,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington.
“The stakes in holding Trump accountable for an attack on our democratic system of government couldn’t be higher, and the evidence is extremely compelling.”
Trump’s effort to bypass the will of voters in Georgia and a handful of other swing states he lost to President Biden in the 2020 election sparked congressional investigations and figure into multiple criminal probes, including by the Department of Justice (DOJ).
But it is the Georgia investigation that is proving to be more of an immediate concern among Trump allies — more so than the DOJ probe, the work of the House committee investigating the Jan. 6 attack on the Capitol or an unrelated criminal fraud investigation in New York that appears likely to conclude without charges being brought against Trump.
“With the Manhattan criminal probe winding down, the Fulton County probe represents the most clear-cut criminal exposure facing Mr. Trump,” said Bradley Moss, a national security lawyer and partner in the law office of Mark S. Zaid.
The Georgia investigation appears to be intensifying as Trump is weighing launching a White House campaign as early this summer.
The grand jury recently issued subpoenas to several high-profile figures, including Graham and Giuliani, as well as conservative lawyers John Eastman, Jenna Ellis and Cleta Mitchell. And Willis’s office recently informed a group of Republicans who served as a phony slate of pro-Trump electors in 2020 that they could face criminal charges.
The Jan. 6 panel also made Trump’s effort in Georgia the subject of one of its hearings last month. The centerpiece was Trump’s phone call to Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021.
In the call, which was taped, Trump pressed Raffensperger to “find” the number of votes required to overturn Biden’s margin of victory. Raffensperger resisted Trump’s efforts and has rebutted his false claims of election fraud.
The Jan. 6 panel hearing highlighted not just how Trump relentlessly pushed Raffensperger and others to find enough ballots to declare him the winner, but also how the former president and his allies targeted election workers who endured months of harassment as a result.
According to legal experts, a critical question that would face Willis if she pursues Trump would be whether to prosecute Trump individually, or as part of a broader conspiracy.
“There is audio, there is witness testimony, there is documentation, and all of that is currently before a special grand jury. The only question is whether Mr. Trump’s actions were sufficient to bring a criminal charge against him alone and independent of anyone else, or if the Fulton County DA will need to encompass his fragmented actions within a broader conspiracy charge tied to individuals like Mr. Giuliani and the fake electors,” Moss said.
There has been speculation that formally declaring his candidacy could insulate Trump from charges and additional investigations because he could argue they are politically motivated. Trump, who has repeatedly denied wrongdoing, has also waved away claims that another White House run might be motivated as a way to deter prosecutors.
In a recent interview with New York Magazine, Trump rejected the idea that he would run for president again to guard against potential legal jeopardy.
“Well, I did nothing wrong, so I don’t see that,” Trump told the outlet. “I did absolutely nothing wrong. I had a perfect phone call in Georgia, so I’m not concerned with it.”
If the House Jan. 6 committee, which wrapped up the first phase of its public hearings this week, makes a criminal referral to the DOJ to indict Trump, it would put Attorney General Merrick Garland under enormous pressure.
But experts said the Georgia investigation differs from the federal probe in key ways that may make the Fulton County prosecutor more likely than Garland to bring criminal charges against Trump.
For Garland, the decision over whether to criminally charge Trump for his effort to overturn the 2020 election results pits his mission to restore the DOJ’s reputation as a nonpolitical agency against the certainty that indicting a former president for the first time in U.S. history would unavoidably plunge the DOJ into the political realm. Although the political ramifications are difficult to overstate, the decision Willis faces over whether to bring a prosecution against Trump is less fraught than Garland’s.
“There are real dilemmas and obstacles facing Garland as he considers whether to prosecute a former president, though I think the evidence is so overwhelming and the offenses are so serious that they should override those very real concerns, but it will undoubtedly be a difficult decision-making process,” Bookbinder said.
“Willis faces some of those same concerns — charging a former president should never be taken lightly in any jurisdiction — and I’m sure she will take them very seriously, but the balance of equities pushing toward bringing any case supported by the facts and the law may well be even clearer there.”