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Another Trump Indictment Looms, but What Can Georgia Add to January 6?

The Fulton Country District Attorney is looking at the same facts as the federal indictment, but under different laws and with the potential for new uninvestigated evidence

Donald Trump addressing a rally in July 2023. Photo: PA Images/Alamy

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Fulton County District Attorney Fani Willis is expected to bring a grand jury indictment against Donald Trump as early as this week. With Jack Smith’s August 1 federal indictment already occupying much of the space the Georgia case was expected to fill — including Trump’s call to pressure Secretary of State Raffensperger, Rudy Giuliani’s misrepresentations to the Georgia legislature, and the fake slate of electors — the question arises: what can Fulton County add to the march towards justice?

Even though there is a big overlap between Smith’s federal indictment and the main components of the Georgia narrative, the Fulton County District Attorney still has the chance to avail herself of unique Georgia law that creates an even stronger case against the Trump-Giuliani pressure campaign.

There also remain many Georgia-specific facts, going back to Georgia election interference in 2016 that have never been fully examined by the media or investigated by law enforcement authorities—that add some uncomfortable twists to the election interference of 2020.

False Statements

Jack Smith’s indictment emphasizes that, where federal law is concerned, Trump and Giuliani had a First Amendment right to lie about the election all they wanted. Georgia offers a number of tools not available to Jack Smith that make knowing misrepresentations especially dangerous—without having to prove intent to overturn valid election results.

Federal law only criminalizes false statements if they are made under oath, before congressional committees or federal law enforcement authorities, or—as in the Smith indictment—in the service of fraud, or as part of a conspiracy to deprive citizens of their constitutional rights. Under this federal law, false statements by Trump to the Georgia Secretary of State or by Giuliani to the Georgia legislature are not criminal offenses.

However, such knowing misrepresentations are felonies under Georgia law—without having to tie them to any other improper act or motive. OCGA 16-10-20 makes knowingly false statements on any matter under the jurisdiction of any state government entity a felony punishable by up to five years in prison. The definition of felony knowing misrepresentations is extremely broad, to cover any “trick, scheme, or device” and include any omission or concealment of a material fact.

The Jack Smith indictment lays out the elements of a Georgia false statements felony. Paragraph 29 lays out a December 27, 2020 phone call by Trump to his own Acting Attorney General (after Bill Barr resigned to avoid going along with Trump’s stolen election narrative):

“During the call, [Trump] again pressed the unfounded claims regarding State Farm [Atlanta] Arena, and the two top Justice Department officials again rebutted the allegations, telling him that the Justice Department had reviewed videotape and interviewed witnesses, and had not identified any suspicious conduct.”

After learning from his own administration officials that these claims were false, Trump repeated them continuously to Georgia Secretary of State Raffensperger in the January 2, 2021 call that sparked the Fulton County criminal investigation.

In Paragraph 32, Jack Smith’s indictment relays a continuing thread of falsehoods by Donald Trump—which continued the next day on Twitter:

“The next day, on January 3, the Defendant falsely claimed that the Georgia Secretary of State had not addressed the Defendant’s allegations, publicly stating that the Georgia Secretary of State “was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more.”

At the time Trump tweeted, he did not know that Raffensperger had made a recording of the phone call—which documents that Raffensperger did, in fact, address, all these issues and rebut all of Trump’s claims. Accordingly, these details of the indictment reveal a stream of false statements by Trump. The notice Trump received, as alleged in Paragraph 29, establishes that they were knowingly false, enough to charge a felony under Georgia law.

Arguably, Trump’s false statements about his conversation with Raffensperger could also be construed as an attempt to coerce and intimidate the Georgia Secretary of State to bend to Trump’s will, another source of possible racketeering charges.

It will be easier to prove, however, that Trump’s statements about this matter under state jurisdiction were knowingly false, as Raffensperger will certainly testify, backed by the tape recording.

This raises the possibility, which many will attribute to karma, that Trump could be indicted for, and possibly convicted of, a false statement felony count, thanks to an improvident Tweet.

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False Filings

Georgia law is also more explicit in making the submission of fake elector certificates a felony under OCGA 16-10-20.1, which criminalizes the creation and filing of any document into the public record “of this state or the United States” that contains a materially false statement. Georgia law, therefore, even prohibits the federal filing of the “alternate” elector certificates with the Senate and the National Archives.

This criminal code section specifically applies to court filings. Paragraph 30 of the federal indictment recounts the filing of a Trump lawsuit to overturn Georgia election results with a signed verification that all facts alleged were believed to be true—even though co-conspirator John Eastman acknowledged before the signing that some of the facts alleged had been proven false. In the Jack Smith indictment, it adds to the criminal intent to defraud the United States that Trump, Eastman, and Giuliani went ahead with the false statements anyway. In Georgia, the knowingly false filing, by itself, is a felony punishable by up to ten years in prison. If Trump’s lead attorney Rudy Giuliani had known the law, that should have gotten his attention.

As with Giuliani’s lies to the Georgia legislature, there is no need to tie these misrepresentations to any other conspiracy or criminal act. The key to both statutes is to prove that the false statements or false filings were made “knowingly”. This is where the federal indictment helps Fani Willis out—with its copious evidence, such as Eastman’s admission of filing a lawsuit filled with false allegations, that Trump and his associates knew they were making false statements about tens of thousands of ballots submitted by dead, underage, non-citizen and out-of-state voters.

These knowingly false material statements even relieve the Fulton DA of the burden of proving that Trump knew he lost the election. She need only prove that all the statements Trump, Giuliani, Eastman and others made to Georgia courts and state officials about dead people voting, in the attempt to reverse the results, were knowingly false. These false statement felonies also qualify as predicate acts of racketeering that can be charged under Georgia’s Racketeer-Influenced and Corrupt Organizations or RICO statute.

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An Inescapable State Snare

The lower standard for charges and convictions under state law has consequences for the defendants in any forthcoming state indictment that they do not face in federal court. Because the lies to state authorities and the filing of materially false documents are crimes in themselves, without having to attach them to any larger criminal conspiracy, the more certain threat of felony charges gives a prosecutor greater leverage to seek to flip co-conspirators as cooperating witnesses.

Reports that Fani Willis already has immunity deals with several fake electors bear this out. There is no evidence of such cooperation in Jack Smith’s federal indictment.

What is even more intriguing is the possibility that US Senator Lindsey Graham could be snared in the web of Georgia false statement law. Graham also made calls to Georgia state officials questioning them about throwing out ballots to flip the vote for Trump. In two phone conversations, also with Georgia Secretary of State Brad Raffensperger, Graham is alleged to have made allegations of “widespread voter fraud” similar to those made by Trump and Giuliani.

It would be much easier to prove that Graham made knowingly false statements to Georgia election officials than to show that he had entered into a conspiracy with Trump and the un-named co-conspirators in Jack Smith’s indictment. It has already been adjudicated, in Graham’s attempts to resist the Fulton County subpoena calling him to testify, that Graham would likely not be protected by the Speech and Debate Clause, which immunizes Senators for what they say in the course of business in congressional chambers, for any of Trump and Giuliani’s false statements about Dominion voting machines or dead voters that Graham repeated to Raffensperger in a call placed to Georgia.

Again, this is additional potential criminal exposure in Georgia only. Graham has not been publicly linked to any of Trump’s attempts to stop the Electoral College Count in Washington, D.C. Graham is only potentially connected to the election interference schemes through his phone calls to Raffensperger that preceded Trump’s now-infamous January 2, 2021 call in which he pressured Raffensperger to “find” 11,780 more votes for Trump, enough to change the election result.

In addition to the greater ease, under Georgia law, of proving criminal acts – in the form of knowingly false statements—the resulting convictions would have the added advantage that they are not susceptible to the federal pardon power. Trump could not undo a conviction in Georgia even if he were re-elected. In addition, the questionable DOJ guideline that says a sitting president cannot be criminally prosecuted while in office (the rule that neutralized Special Counsel Robert Mueller in the Russia investigation), has no discernible statutory or constitutional basis. Therefore, Trump could not derail a Fulton County trial in progress even from the White House.

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Evidence of a More Deep-Seated Conspiracy

In addition to these legal advantages, Georgia possesses a rich vein of unexplored evidence of election interference that began at the same time the Ukrainians expelled his puppets Viktor Yanukovych and Paul Manafort, prompting Vladimir Putin to order the attack on US elections to help campaign manager Paul Manafort get Trump elected.

Many of the major players in the Georgia election interference saga of 2020 – that is unfolding in Fulton County this week — also played starring roles in the 2016 election. Investigating these facts can drastically change the conventional narrative for the Fani Willis prosecution.

Seven years after Donald Trump’s improbable election victory, we now have considerable evidence of election interference — including Russian hacking in all 50 states — in the 2016 Presidential election. There is now considerable evidence of Trump supporters engaging in election interference and evidence tampering and knowing misrepresentations to hide their actions that aided and abetted the Russian military intelligence active measures campaign.

These remain largely uninvestigated by the media or law enforcement authorities. The current and pending indictments do not address them—though the documented knowing misrepresentations are the key to penetrating the fraud on the American people in both elections.

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