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Fulton County’s Top Prosecutor Requests Special Grand Jury to Probe Donald Trump. Here’s What It Means Legally.

Donald Trump and Fulton DA Fani Willis

Donald Trump and Fulton County DA Fani Willis

Fulton County’s top prosecutor requested a special grand jury on Thursday to investigate former President Donald Trump’s efforts to overturn Georgia’s 2020 election results.

If allowed to proceed, the secret panel would be allowed to probe Trump’s infamous phone call urging Georgia Secretary of State Brad Raffensperger (R) to “find 11,780 votes,” but it would not be empowered to return an indictment.

“If you are trying to keep a politically advantageous investigation process going as long as possible without making an indictment, this is what you would do,” Atlanta-based defense attorney Andrew Fleischman, who works for the firm Ross & Pines, LLC, told Law&Crime in a phone interview.

“Sole Agency with Jurisdiction That Is Not a Potential Witness”

Fulton County District Attorney Fani Willis (D) made her request in a two-page letter to the Superior Court’s Chief Judge Christopher S. Brasher.

“Please be advised that the District Attorney’s Office has received information indicating a reasonable probability that the State of Georgia’s administration of elections in 2020, including the State’s election of the President of the United States, was subject to possible criminal disruptions,” Willis wrote.

On Trump’s phone call with Raffensperger, the former president complained that a U.S. Attorney whom he called a “never Trumper” did not endorse his baseless election-fraud claims. The Southern District of Georgia’s then-U.S. Attorney ByungBJay” Pak was replaced “by order of the president” two days later, and Pak later told the Senate that Trump would have fired him if he did not resign. Pak’s replacement Bobby Christine, previously of the Northern District of Georgia, later resigned.

former U.S. Attorney BJay Pak

BJay Pak (Screenshot from 11Alive)

Willis cited Trump’s far-flung efforts to overturn Georgia’s election as the reason her office is best-placed to investigate.

“Our office has also learned that individuals associated with these disruptions have contacted other agencies empowered to investigate this matter, including the Georgia Secretary of State, the Georgia Attorney General, and the United States Attorney’s Office for the Northern District of Georgia, leaving this office as the sole agency with jurisdiction that is not a potential witness to conduct related to the matter,” she wrote.

According to the letter, Raffensperger—an essential witness to the investigation—told Willis’s office that he would not voluntarily agree to an interview or provide evidence without a subpoena.

Willis asked the judge to empanel a “special purpose grand jury” to investigate the “facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.” She noted such a panel will “not have the authority to return an indictment but may make recommendations concerning criminal prosecution as it shall see fit.”

A special grand jury also will be able to maintain exclusive focus on the Trump investigation and continue its term beyond the length of a typical grand jury, the district attorney noted.

If a case were to result in a prosecution, the evidence there would be more difficult to challenge under a Georgia precedent known as State v. Lampl, a corruption case where the defendant said prosecutors used evidence beyond the special grand jury’s scope.

“The Supreme Court of Georgia says, ‘Well, yeah, they went beyond the scope, but there’s no exclusionary remedy when that happens,'” Fleischman, the defense attorney, noted.

“Trump Doesn’t Talk Cleanly”

However, Fleischman added that he did not believe Trump has much to fear about his potential criminal exposure in Fulton County. He noted that there is always the possibility that the judge denies the application.

“Even assuming they say ‘yes,’ all it means is that she’s gonna subpoena some witnesses, whose testimony she probably already has a pretty good guess about, right?” Fleischman added. “I mean, the call is recorded. So is the other call. We have Trump on the record a million times talking about this. If you don’t have enough for an indictment now under Georgia law—which I think you don’t—I don’t see what additional investigation is going to give you.”

The Brookings Institute, a centrist Washington, D.C.-based think tank, came to a different view in a 114-page report on Trump’s possible exposure, ranging from misdemeanors like failing to perform an official duty to felonies like election interference.

“The facts and law are clear—given the responsibility of the State of Georgia to oversee and certify the election, and the absence of any presidential responsibility in determining that outcome—that Trump’s efforts to twist the arms of various state officials to change the outcome in his favor were well outside the scope of his responsibilities,” the Brookings report, co-authored by lawyer for House Judiciary Democrats during Trump’s first impeachment Norman Eisen and six other attorneys and analysts, concluded.

The report noted that the “11,780 votes” that Trump wanted Raffensperger to “find” was President Joe Biden’s precise margin of victory in that state. Trump also warned Raffensperger it would be “a big risk to you” and “very dangerous” to insist that there was “no criminality” in the administration of the Georgia election,” comments widely described as attempted intimidation and threats.

Georgia Secretary of State Brad Raffensperger

Trump could also assert several defenses, from challenging venue to federal court, a maneuver that could put the case in the U.S. Attorney’s jurisdiction. The former president might also assert a First Amendment defense.

“He’s a citizen who was petitioning someone he’s not directly in control of to do a thing,” Fleischman said. “Now he’s saying some crazy things in the process, but he believes those things to be true.”

Brookings noted that “speech integral to criminal conduct, such as fighting words, threats, and solicitations, remains categorically outside” First Amendment protection, but Fleischman believed Trump’s approach fell outside those simple categories.

“It’s not as clean as people want it to because Trump doesn’t talk cleanly,” Fleischman said. “He doesn’t express himself in a simple and clear way.”

As a defense attorney, Fleischman found the time span of the investigation to be of added significance: “Fulton County is not slow to indict stuff.”

The DA’s letter does not mention Trump by name, except in a transcript of Raffensperger’s interview with “Meet the Press” included as an exhibit.

Read Willis’s letter, below:

(Photo of Trump via Nicholas Kamm/AFP/Getty Images/ Photo of Willis via screenshot of video on DA’s website)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."