Ahead of former President Donald Trump’s return to Georgia, legal experts with the Brookings Institution think tank published a detailed analysis Friday of the potential criminal investigation he faces in Fulton County linked to his outspoken efforts to overturn the state’s election results.
The 107-page report, written by seven legal analysts, concludes that Trump’s post-election conduct leaves him at “substantial risk of possible state charges predicated on multiple crimes.” It was published a day before Trump is set to hold a rally in Perry to promote a slate of state Republican candidates.
Much of the report centers on the Jan. 2 phone call between Trump and Secretary of State Brad Raffensperger first reported by The Washington Post and The Atlanta Journal-Constitution. During that call, Trump badgered the GOP elections official to “find” enough votes to reverse his narrow defeat.
But it also outlines a host of other potential criminal infractions surrounding his push to invalidate the election, including direct calls to Gov. Brian Kemp and state Attorney General Chris Carr, and efforts by his attorney Rudy Giuliani to lobby state legislators to take extraordinary action.
Overall, the report said, the charges could include criminal solicitation to commit election fraud, intentional interference with performance of election duties, conspiracy to commit election fraud, racketeering and violations of more than a dozen other state statutes.
“Stated simply, soliciting and then threatening senior state officials to alter the outcome of a presidential election does not fall within any reasoned conception of the scope of presidential power,” the group wrote.
Among the report’s authors are Norman Eisen, President Barack Obama’s ethics czar who later became a special counsel to House Democrats during Trump’s first impeachment trial; and Gwen Keyes Fleming, a former DeKalb County district attorney.
The report comes as the Fulton County district attorney’s office continues its 7-month-old criminal probe of Trump’s conduct related to Georgia’s elections.
Prosecutors have appeared before a grand jury seeking subpoenas for documents and witnesses; interviewed at least four of Raffensperger’s closest aides; hired the state’s leading authority on racketeering and conspiracy laws; and begun coordinating with members of Congress probing the Jan. 6 insurrection at the U.S. Capitol, the AJC previously reported.
A spokesman for Fulton County District Attorney Fani Willis said Thursday that the investigation is “active and ongoing” but declined to disclose additional details.
Trump’s advisers have dismissed the probe as politically motivated.
“This is simply the Democrats’ latest attempt to score political points by continuing their witch hunt against President Trump, and everybody sees through it,” confidant Jason Miller said in a statement after the investigation was launched this spring.
As a part of their legal analysis, the authors of the Brookings report explored the legal defenses Trump’s lawyers could mount should the Fulton investigation eventually lead to the courtroom.
They said he can’t be immune because “a candidate who believes he has won an election does not enjoy any legal warrant to commit possible crimes in furtherance of that belief.” And second, because “there is an extraordinary absence of any evidence suggestive of irregularity in any respect in the Georgia process.”
In an interview with the AJC, Eisen said the state’s responsibility to count the ballots cast by its citizens and certify the presidential election results is paramount over the desires of a political candidate — even that of a president.
“The president doesn’t have the right to overturn state elections to benefit himself,” Eisen said. “He doesn’t have any role in state elections.”
Eisen said he wouldn’t be surprised if Trump details his grievances about Georgia officials’ handling of the 2020 election during his appearance in Perry over the weekend.
“His statements and those of his allies have unfortunately contained a great deal of false information and disinformation, and that’s another reason that it’s important to put the undisputed facts out there in great detail,” Eisen said, mentioning one of the reasons why he and his colleagues produced the report.
The authors said that beyond analyzing the public facts and the law itself, it isn’t their place to say what should happen to Trump. They strongly suggest, however, that prosecutors can build a potent case against the former president.
“There can be no doubt that prosecutors should take extra care and deliberation when considering charges against former public officials and those associated with them,” the authors wrote.
“But if they were somehow exempt, or ultimately subject to different and lower standards of liability, that would betray the core ideas of American justice.”
