While the Department of Justice investigations into disgraced water salesman Donald Trump meander toward their politically inert conclusions, the state-level investigations into Trump’s various suspected crimes appear headed toward inflection points. In New York, Attorney General Letitia James’s investigation into the Trump Organization continues apace, while the Manhattan district attorney has extended an invitation to Trump to testify about his hush-money payments to Stormy Daniels. Trump’s lawyer in that case, Joseph Tacopina, has popped up all over cable news this week making clownish claims, as if to prove that Trump continues to hire legal counsel based on their subway ads.
Still, it’s the investigation into Trump’s attempted election fraud in Georgia that is poised to put Trump in the most immediate legal jeopardy. A special grand jury convened in Fulton County to look into the assorted efforts Republicans made to overturn the 2020 presidential election results in that state has concluded its work. According to leaks, the grand jury recommended numerous charges, not just against Trump but also potentially against his associates and the individuals who participated in the “fake electors” scheme.
These leaks further revealed that the grand jury heard another Trump phone call, this one to David Ralston, the recently deceased former speaker of Georgia’s House. In this call, Trump tried to pressure Ralston into calling a special session of the legislature so it could overturn the results of the Georgia election. The previously unreported call adds to the evidence that Trump and his allies waged a pressure campaign to change the election results, despite there being no credible evidence of fraud to support those efforts.
Should Fulton County District Attorney Fani Willis choose to pursue charges, Trump could be on the hook for a number of crimes, including: election fraud; tampering with an official proceeding; criminal solicitation (ie, asking others to commit election fraud); a number of crimes related to their run-of-the-mill lying; and even violating RICO, the law created to catch mobsters who order crimes but never do the dirty work themselves. The penalties for most of these crimes include prison time. Willis says her decision is “imminent.”
Many of those eager to see Trump face any form of accountability rightly believe the state-level prosecutions are closer to indicting him than anything happening at the federal level. But that doesn’t mean they’re particularly close to bringing Trump to justice. Should Willis charge Trump with any crimes, the fascist-defense legal-media complex will immediately go into overdrive. Legislators in Georgia’s Republican-controlled House of Representatives have already passed a bill that would allow special panels to remove “rogue” prosecutors—or, perhaps, those, like Fani Willis, who fail to show appropriate deference to the MAGA machine. Whether that legislation can be passed by both houses, signed, and executed before Willis brings charges is anyone’s guess, but its mere existence is an intimidation tactic engineered by Republicans trying to bring a Black woman to heel.
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Meanwhile, Trump lawyers are threatening to try to “quash” indictments brought against Trump because so much information has already leaked from the grand jury, especially the jury forewoman. The lawyers argue that this shows “bias” from the grand jury, and its findings should be thrown out. It is indeed inappropriate, if not entirely unusual, for the grand jury to be leaking about potential charges before those charges are filed. But since those leaks don’t show premeditated bias from the grand jury (there’s no evidence that the grand jury wanted to charge Trump before they heard all the evidence against Trump), and since the actual charging decision in this case is held by the district attorney, and since any actual indictment will involve Willis convening a different grand jury specifically for the purposes of bringing indictments, the leaks are not a credible reason to quash indictments, should they ever get here.
Still, as everyone should know by now, the Trump legal team and his allied forces are not interested in credible legal arguments; they’re interested only in saying whatever they can to prevent or delay accountability. Moving to quash the indictments could force delay, even if Trump’s bad arguments are eventually dismissed. Removing Fani Willis from the case wouldn’t immediately end the investigation (though it could, if Georgia Republicans find some corrupt Trump ally to take over her office), but it would force a massive pause as a new prosecutor would need a lot of time to get ready for trial.
It’s obvious why Trump might want all of this. His only goal is to get to the next election. Even though Willis seems less cowed than Merrick Garland by the political weight of holding a former president accountable, she’s been willing to make reasonable and appropriate accommodations for political realities. She promised that her office would produce no news about indictments in the immediate run up to the midterm elections, and she didn’t. If Trump is able to delay the trial to around a year from now, I seriously doubt that Willis (or any other prosecutor) will set a trial date for that time—not when the Georgia Republican presidential primary is scheduled to be held on March 26, 2024. If a trial doesn’t happen before the end of this year, it likely won’t happen till after that primary, at the earliest.
All of this means Willis could find herself trying to bring the Republican presidential candidate to trial for election fraud after he’s already wrapped up the nomination and is in full campaign mode. Honestly, I don’t even know how that works. How do you do jury selection? Are Trump voters allowed on the jury? Are Biden voters? Wouldn’t every Trump campaign ad in Georgia—which is a “battleground” state now—be a form of juror tampering? How do you find impartial jurors about election fraud in the middle of a presidential election among a pool of jurors who had the opportunity to vote for the criminal defendant just weeks before?
None of that is to say that Willis shouldn’t proceed. If she has sufficient evidence that Trump committed crimes, she must charge him. She has no choice. Not charging him would be an even greater capitulation to politics than bringing him to trial during a political election.
Nevertheless, if I may paraphrase Red from Shawshank Redemption: While I’d like to tell you that Trump is close to paying for his crimes, this is no fairy-tale world. Trump’s legal strategy of delay is very likely to work. He is very likely to escape accountability—again—even should this diligent and thorough investigation result in charges.
The Georgia investigation puts him in the most legal peril yet: We have the man on tape committing the crime he should be charged with. And yet, Trump is still the odds-on favorite to get away with it. “The system” has never been able to sufficiently protect us from Trump, and I don’t think it’s about to start now.
