Former President Donald Trump looks more likely than ever to face a possible racketeering charge for his efforts to flip Georgia’s 2020 election result, lawyers say.
The hailstorm of subpoenas dropped by a Georgia special grand jury on Trump’s inner circle presents fresh evidence of Fulton County District Attorney Fani Willis’ confidence that she’ll be able to bring a case, lawyers watching her investigation told VICE News. Last week, Willis asked a local judge to sign off on subpoenas for South Carolina Sen. Lindsey Graham and lawyer Rudy Giuliani, along with other Trump legal advisors.
“I think she’s going to be able to make a case,” Page Pate, a Georgia-based criminal defense attorney who’s known Willis for years, told VICE News. “She’s not going to go through all that if she doesn’t have probable cause to move forward.”
And the case she appears increasingly likely to bring, according to Pate, happens to be Willis’ signature move: a sweeping racketeering case under a statute known as Georgia RICO, or the Georgia Racketeer Influenced and Corrupt Organizations Act.
Georgia RICO is the junior cousin of the federal RICO statute, which was created in 1970 to bring down the mafia. In a nutshell, both laws prohibit anyone from using an organization to commit a series of crimes.
In Georgia, the organization in question could be the Trump campaign, and the series of crimes could be as simple as a trail of lies told to Georgia officials about baseless fraud allegations, Pate said.
“What she’d have to prove is that a given statement was false, that the person knew it was false when they said it, and that the lie was part of a coordinated attempt to secure something of value,” Pate said. In this instance, that valuable item could be the presidency.
“It’s not a complicated case,” Pate said.
Willis’ latest round of subpoenas suggests she’s zeroing in on a series of questionable statements made by people in Trump’s orbit, after the Republican nominee lost Georgia and its 16 electoral votes in a nail-biter.
Willis’ petition for a subpoena for Giuliani, who has worked as Trump’s personal attorney, takes note of Giuliani’s appearance in front of the Georgia State Senate on Dec. 3 of 2020. Giuliani showed a video purporting to show election workers producing suitcases full of unlawful ballots, the court filing says. The video was quickly debunked, but Giuliani kept bringing it up anyway, the document says.
The petition to subpoena Graham mentions “at least” two phone calls made by Graham to Georgia Secretary of State Brad Raffensperger and members of his staff during the weeks after the 2020 election. The calls were “about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” the document says.
Willis has explicitly said she’s examining whether to apply Georgia RICO to the Trump team’s actions in Georgia, in both a letter circulated to local state officials and in an on-the-record interview she gave to the New York Times.
The crown jewel in Willis’ collection of relevant facts remains the lengthy, recorded phone call that Trump had with Raffensperger on Jan. 2, 2021, said Gene Rossi, a former federal prosecutor from the Eastern District of Virginia.
“I think the most damning piece of evidence is still the phone call in which Trump asks to find a specific number of votes,” Rossi said.
President Joe Biden carried Georgia by a wafer-thin margin of just 11,779 votes. But Trump called Raffensperger on Jan. 2 and urged the state official to help Trump “find” enough votes to win. The call was tape-recorded and then leaked to the media, including the Washington Post.
“All I want to do is this,” Trump told Raffensperger. “I just want to find 11,780 votes, which is one more than we have, because we won the state.”
Trump’s representatives have repeatedly denied any wrongdoing by the former president.
Even if an indictment is coming, it likely isn’t coming for months, most legal experts agreed.
“These subpoenas will be litigated, and even though I don't think there are any lawful grounds to resist them, it's going to take some time for that to work its way through the courts,” said Rebecca Roiphe, a former New York prosecutor and expert on prosecutorial ethics at New York Law School. “I don't think we're looking at any indictments for many months, if at all.”
The most likely timing may be after the midterm elections this fall, but as soon before the presidential election campaign cycle of 2024 as possible, Rossi said.
Willis has said more subpoenas for Trump allies may be coming, and that she doesn’t exclude the possibility of subpoenaing Trump himself.
That means the next stage of the probe is likely to be a protracted, sprawling legal battle, across multiple states, over which witnesses will ultimately be compelled by the courts to speak to the special grand jury under oath.
Yet the point of the subpoenas may not be to secure the recipients’ cooperation, said Pate, so much as to gauge how they react and what kinds of arguments they may use to avoid cooperating with the probe.
“Are they going to make statements in the media? Will they come forward? Or, when will they come forward? She’ll want to see their responses,” Pate said. “It’s like flushing quail.”
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