The Fulton county district attorney investigating Donald Trump’s efforts to overturn the 2020 election results in Georgia has evidence to charge multiple allies of the former president involved in breaching voting machines in the state, according to two people briefed on the matter.
The potential charges at issue are computer trespass felonies, the people said, though the final list of defendants and whether they will be brought as part of a racketeering case when prosecutors are expected to present evidence to the grand jury next week remain unclear.
To bring a racketeering case under Georgia state law, prosecutors need to show the existence of an “enterprise” predicated on at least two “qualifying” crimes, of which computer trespass is one. The Guardian has reported that prosecutors believe they have sufficient evidence for a racketeering case.
The statute itself prohibits the intentional use of a computer or computer network without authorization in order to remove data, either temporarily or permanently. It also prohibits interrupting or interfering with the use of a computer, as well as altering or damaging a computer.
Prosecutors have taken a special interest in the breach of voting machines in Coffee county, Georgia, by Trump allies because of the brazen nature of the operation and the possibility that Trump was aware that his allies intended to covertly gain access to the machines.
In a series of particularly notable incidents, forensics experts hired by Trump allies copied data from virtually every part of the voting system, which is used statewide in Georgia, before uploading them to a password-protected website that could be accessed by 2020 election deniers.
The story about how a group of Trump allies gained unauthorized access to voting machines – informed by deposition transcripts, surveillance tapes and other records – can be traced back to 2020, when the top elections supervisor for Coffee county came across the “adjudication” system for mail ballots within the machines.
A spokesperson for the Fulton county district attorney’s office did not respond to a request for comment.
In Georgia, mail ballots are marked by hand. If a ballot cannot be read by the machine, because of stray marks or other errors, it goes through an adjudication process whereby a bipartisan panel reviews the ballot and agrees on the voter’s intention before telling the machine how to count it.
The adjudication process became a point of controversy in local Republican party circles after the elections supervisor, Misty Hampton, said in a viral November 2020 video that the person entering the information could theoretically tell it to falsely count a ballot intended for one candidate for another.
Swapping a vote through the adjudication process would be straightforwardly illegal, and there is no evidence that such conduct took place during the 2020 presidential election. If it had, it would have been detected during the subsequent statewide hand count, experts have said.
On 5 January 2021, Georgia held runoff elections for the state’s two US Senate seats. That day, amid a fraught atmosphere, the Coffee county GOP chair, Cathy Latham, was the Republican member on the bipartisan adjudication panel.
As Latham later recounted in depositions in a long-running lawsuit brought by the Coalition for Good Governance, the ballot scanner in Coffee county repeatedly jammed as it tried to read mail-in ballots. And in Latham’s retelling, it appeared to jam more often for ballots marked for Republican candidates.
When Latham complained, the on-site Dominion Voting System technician advised her to wipe the ballot scanner with a cloth. Latham said in her statement that the wiping did not work, and it was only after the technician held his phone near the scanner that the problems were resolved.
According to Latham’s account, the suspicion was that the technician had downloaded something to the ballot scanner through his phone.
There remains no such evidence to date and the Georgia secretary of state’s office has affirmed the scanners have no wireless capability. But that bizarre episode appears to have been the trigger for a number of Trump allies to see if someone could have manipulated the election.
The day after the Capitol attack in Washington, on 7 January 2021, surveillance video picked up Eric Chaney, a member of the Coffee county elections board, arriving at the county’s elections office around 11am. Latham also arrived at the office around an hour later.
The tapes then show Latham greeting data experts from SullivanStrickler, a firm that specializes in “imaging”, or making exact copies, of electronic devices, and Scott Hall, a bail bond business owner with ties to the local Republican party hunting for evidence of election fraud.
What happened inside the elections office is only partially captured on surveillance video, but records show the SullivanStrickler team imaged almost every component of the election systems, including ballot scanners, the server used to count votes, thumb drives and flash memory cards.
The company believed it had authorization to collect the data, SullivanStrickler’s director of data risk Dean Felicetti later said in a deposition, and suggested that Hampton and Latham had given their approval.
Most of the imaging work apparently took place off camera, though tapes from the lobby of the Coffee county elections office show Latham, Hampton and Chaney with the SullivanStrickler experts as they bend over to look at computer screens and walk around elections equipment.
Lawyers for Latham and Hampton did not respond to requests for comment. But Latham’s previous lawyer has told the Washington Post that she did not authorize the copying and had “not acted improperly or illegally”. Hall and Chaney also did not respond to requests for comment.
The next day, according to text messages, Trump lawyer Sidney Powell – who helped organize the clandestine operation and paid for it through her non-profit – was informed that SullivanStrickler would post the data it had gathered on to a password-protected site from where it could be downloaded.
Breaches of the Coffee county voting machines appear to have happened at least two additional times. On 18 January 2021, they were accessed on a second occasion when Hampton arrived with Doug Logan, the CEO of elections security firm CyberNinjas, and a retired federal employee named Jeffrey Lenberg.
The pair spent at least four hours that afternoon inside the elections office, and then returned the following day for another nine hours. Lenberg then again gained access to the elections office every day for four days starting on 25 January 2021.
What Lenberg did inside remains uncertain. But in a subsequent podcast interview, Lenberg said he and Logan went to Coffee county after hearing about the Senate runoffs incident because they wanted to see if they could replicate the error but “didn’t touch” the machines themselves.
