The Fulton county district attorney investigating Donald Trump’s efforts to overturn the 2020 election results in Georgia in recent weeks has weighed several potential statutes under which to charge, including solicitation to commit election fraud and conspiracy to commit election fraud, according to two people briefed on the matter.
The move by the Fulton county district attorney, Fani Willis, to identify a list of potential charges marks a major juncture in the criminal investigation and suggests prosecutors are on course to ask a grand jury to return indictments next month.
Among the state election law charges that prosecutors were examining: criminal solicitation to commit election fraud and conspiracy to commit election fraud, as well as solicitation of a public or political officer to fail to perform their duties and solicitation to destroy, deface or remove ballots, the people said.
The district attorney is also seeking to charge at least some of the Trump operatives who were involved in accessing voting machines and copying sensitive election data in Coffee county, Georgia, in January 2021 with computer trespass crimes, the two people said.
The outcome of deliberations, as well as the manner in which the statutes might be enforced, remains unknown. For instance, prosecutors could charge under certain statutes individually, fold them into a wider racketeering case of the kind that the Guardian has previously reported, or do a combination.
Prosecutors are expected to bring charges stemming from the Trump investigation at the start of August, a timeline inferred from the district attorney’s instructions to her staff in May to work remotely during that period because of potential security concerns.
The grand jury that would decide whether to return an indictment against Trump or others was selected in mid-July. The selection process was attended by Willis and two prosecutors known to be on the Trump case: the deputy district attorney Will Wooten and special prosecutor Nathan Wade.
A spokesperson for Willis did not respond to requests for comment.
For a criminal solicitation charge, prosecutors would have to show that Trump persistently requested another person to engage in certain illegal conduct that are “likely and imminent” as a result of the solicitation. The fact that the solicited acts were not carried out is not considered a defense.
The statute for soliciting a public officer to fail to perform duties could apply to Trump when he pressured the Georgia secretary of state, Brad Raffensperger, to “find 11,780 votes”, as well as his phone calls to chief investigator Frances Watson and the house speaker, David Ralston.
The threshold question there is whether Raffensperger would have failed to perform his duty as the state’s top election official if he had done what Trump wanted, according to the Brookings Institution – for instance, if he actually went and “found” 11,780 votes to reverse Trump’s loss.
The statute for soliciting the tampering of ballots, meanwhile, could apply to Trump when he pressed Watson to go beyond protocol to go back “two years, as opposed to just checking, you know, one against the other” in conducting signature checks during ballot audits.
The critical issue in that call would come down to whether Trump was in effect asking Watson to use a non-standard method to invalidate legitimate ballots that he hoped would benefit him because it would whittle down the number of legitimate votes for Joe Biden, Brookings found.
Prosecutors are also expected to seek a criminal conspiracy charge, the people said. The conspiracy statute in Georgia is interpreted broadly, and the district attorney’s office would only need to show that two or more people tacitly came to a mutual understanding to further a crime.
Trump could have wide legal exposure under the conspiracy statute with prosecutors for months investigating whether Trump, his top lawyers and his campaign aides took steps they knew were illegal in replacing the legitimate slates of electors in Georgia with 16 fake Trump electors.
The district attorney’s office has spent more than two years investigating whether Trump and his allies interfered in the 2020 election in Georgia, while prosecutors at the federal level are scrutinizing Trump’s efforts to reverse his defeat that culminated in the January 6 Capitol attack.
A special grand jury in Atlanta that heard evidence for roughly seven months recommended charges for more than a dozen people including the former president himself, its forewoman strongly suggested in interviews, though Willis will have to seek indictments from a regular grand jury.
Willis originally suggested charging decisions were “imminent” in January, but the timetable has been repeatedly delayed after a number of Republicans who sought to help Trump stay in power as so-called fake electors accepted immunity deals as the investigation neared its end.
