This Georgia Prosecutor Has Donald Trump in Her Sights, and She’s Not Stopping
By Norman Eisen and Amy Lee Copeland
"Mr. Eisen served as special counsel to the House Judiciary Committee during the first impeachment and trial of Donald Trump. Ms. Copeland is a criminal defense and appellate attorney in Savannah, Ga.
Now that the House Jan. 6 committee’s initial hearings have concluded, this is a useful time to evaluate their actual impact. For that, we should look not to Washington but well south of the Capitol, to Atlanta.
That’s because the hearings have turbocharged the investigation by the Fulton County district attorney, Fani Willis, into potential election interference and offenses by Donald Trump and his allies.
Any charges in that investigation may define a big part of the committee’s legacy, even as it looks to extend its work into the fall.
Normally, the primary question after congressional revelations like those we have heard would be whether there would be federal charges, as in Watergate. Here, the Justice Department may be contemplating possible actions, but Ms. Willis is further along. Her flurry of target letters to Georgians who formed an alternate slate of 2020 presidential electors strongly suggests she is considering charges.
Ms. Willis has operated with calculated urgency since she opened her investigation in February 2021. She has moved from building a prosecution team and conducting voluntary interviews to convening a special grand jury to issuing those target letters (at least 16 of them) to the Republican electors who, despite his election loss in the state, covertly met to cast votes for Mr. Trump and submit an alternate electoral slate on Dec. 14.
Target letters typically mark the progression of an inquiry by notifying recipients that they are under active investigation. They also often implicitly push those receiving them to flip — that is, to cooperate against others higher up in a conspiracy early, while the best deals are available. As she proceeds, Ms. Willis has made no secret that she is looking at the man at the top: Mr. Trump.
Even before the hearings, Ms. Willis had two pieces of compelling evidence against the former president. The first was the recording of the conversation on Jan. 2, 2021, in which he urged Brad Raffensperger, the Georgia secretary of state, to “find 11,780 votes.” The second was the phony electoral slate that Trump electors sent to Congress and the National Archives on Dec. 14. No matter what Mr. Trump or his allies may have believed about the election results, they were not permitted to demand the creation of nonexistent votes or to forge official documents.
Ms. Willis is in a very favorable jurisdiction to prosecute charges. Arguably more so than comparable federal statutes, the state’s laws for crimes like solicitation to commit election fraud appear to offer a close fit with the accusations against Mr. Trump and his allies, which include asking for those fraudulent votes or electors. Georgia law also allows Ms. Willis to sweep a broader array of Mr. Trump’s alleged wrongful acts under the state racketeering statute than the more narrowly defined federal one would.
It is also to Ms. Willis’s advantage that she is a state official and not a federal one. Any charges brought by the attorney general of a president against his former election opponent are fraught with ethical questions of politics. Ms. Willis has less partisan baggage than her federal counterparts.
She is a local prosecutor who, while a Democrat, had little to do with the former president until he committed alleged crimes in her jurisdiction. And her 2015 prosecution of a cheating scandal involving Atlanta teachers, a traditionally Democratic group, burnishes her nonpartisan prosecutorial credentials. Unlike federal prosecutors, she is also unencumbered by Justice Department Office of Legal Counsel opinions on the powers of the presidency that can complicate charging current or former presidents.
None of this is to say that she will not encounter extreme scrutiny. Her every act will now be examined, as suggested by recent critical comments from a Georgia judge hearing a motion for her recusal from the Trump investigation. It was filed by a false elector (and many others later joined the motion), based upon what ultimately seems to be ethically permissible campaign activity. Still, she must proceed with extra care going forward.
Her prosecutorial task will not be easy. When you charge a president, you need more than the standard proof beyond a reasonable doubt; you need proof waybeyond a reasonable doubt. That is what the committee has helped deliver, producing a mountain of additional evidence that might have taken her years to gather — if she could have gotten it at all.
For example, take the testimony by former Acting Attorney General Jeffrey Rosen and other witnesses about Mr. Trump’s attempt to hijack the Justice Department — which included an effort by Jeffrey Clark to send a letter to state officials in states, including Georgia, that falsely claimed that the Justice Department had “identified significant concerns” that would affect the state’s election results.
Then there is the phony electors scheme. Here again, the committee came to Ms. Willis’s aid, obtaining testimony from Ronna Romney McDaniel, the chairwoman of the Republican National Committee, and others describing Mr. Trump’s personal involvement in helping recruit false electors in states like Georgia. That testimony directly linked Mr. Trump to the conspiracy Ms. Willis may charge.
Any prosecution must consider intent, and the committee has also secured proof of Mr. Trump’s state of mind that might not have been otherwise available. Testimony from an array of witnesses — especially those closest to Mr. Trump, like his former attorney general Bill Barr and his former White House counsel Pat Cipollone — demonstrated both that Mr. Trump was told he had lost the election and that, after Dec. 14, when the Electoral College cast its votes, he was told that there was no legitimate legal basis to continue his attack.
Those witnesses would probably not have traveled to Georgia to give live testimony to Ms. Willis without a fight. Just look at the battle Senator Lindsey Graham and Representative Jody Hice, two comparatively less important witnesses in the Georgia case, are putting up to avoid testifying there.
Perhaps most valuable of all, there are Mr. Trump’s own words — the outtakesfrom his taped speech to supporters a day after the Capitol assault that were revealed in the Thursday hearing. Most memorably in proving his intent, he said at one point, “I don’t want to say the election is over.” Ms. Willis will be able to put these statements unearthed by the committee into evidence in any trial against Mr. Trump under the rules of evidence prescribed by the Georgia code. The same is true of much more of the proof the committee has collected.
We learned Thursday night that the hearings will likely continue in September, not long before the midterm elections. The committee dropped hints of the direction it will go, in a less prosecutorial and more political mode. The Josh Hawley segment offered an example of that material, as did Representative Adam Kinzinger’s statement that “the forces Donald Trump ignited that day have not gone away,” and they are “all still out there ready to go.”
Prosecutors do not charge or try cases in a vacuum, and these hearings have surely stiffened Ms. Willis’s already considerable resolve to follow the evidence wherever it may lead. That — together with the vast amount of relevant proof of possible Georgia crimes — may prove to be the Jan. 6 committee’s most consequential legacy.
Norman Eisen served as special counsel to the House Judiciary Committee during the first impeachment and trial of Donald Trump. Amy Lee Copeland, a former federal prosecutor, is a criminal defense and appellate attorney in Savannah, Ga."
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