World·Analysis

As a special grand jury is chosen in Trump's election fraud case, here's what you need to know

Jurors will be chosen on Monday to examine whether former U.S. president Donald Trump and some of his allies committed criminal offences in trying to deny Georgia's electoral votes to Joe Biden — votes that helped tip the 2020 presidential election. Find out more about the work of this special grand jury.

Proceeding has little precedent, could ultimately recommend high-profile indictments

Former U.S. president Donald Trump holds a rally in Commerce, Ga., on March 26. He has made multiple appearances during this midterm primary season on behalf of candidates he favours, but it will be his post-election behaviour in 2020 and 2021 that will be presented to a special grand jury. (Alyssa Pointer/Reuters)

Something unprecedented is happening in the state of Georgia, though it is expected to proceed under heavy security.

A special grand jury at the county level will examine, in part, whether a former U.S. president may have committed criminal offences — all connected to Donald Trump's desperate attempts to change Georgia's critical 16 electoral votes, which helped Joe Biden win the 2020 election.

What would happen if a former president was indicted has never been tested in the U.S. Richard Nixon was pardoned by his successor before he could face any criminal consequences related to Watergate.

"It's hard to think of anyone, even Nixon, who has tried to interfere with the actual conduct of an election. Certainly we don't have any examples in modern times like this," Rick Hasen, a professor specializing in election law at the University of California, Irvine, told CBC News.

"And there's an audio recording, which provides a kind of strong evidence that makes looking into this potential criminal activity more realistic."

WATCH Trump's Jan. 2, 2021, phone call with Georgia officials raises legal questions:

Trump asked Georgia’s secretary of state to ‘find’ more votes

2 years ago
Duration 2:02
U.S. President Donald Trump called on Georgia's secretary of state to 'find' more votes so he could win that state. The recording of the phone call emerges as the new Congress is sworn in, and with some Republican senators days away from mounting their own challenge to the election results.

On a recording of that Jan. 2, 2021, phone call, Trump is heard pleading with Georgia Secretary of State Brad Raffensperger as the elected official and his legal counsel rebut a series of voting fraud allegations the president has heard about in "Trump media." Trump urges them to move mountains to recheck state totals, which he said he believes would erase Biden's 11,779-vote advantage.

The process of selecting the special grand jury begins Monday. Here's what you need to know:

The district attorney

Fulton County District Attorney Fani Willis opened a probe last year to examine "attempts to influence the administration of the 2020 Georgia general election." She argued her office was best situated, given that several state officials were possible witnesses.

About 50 people have been interviewed, with subpoenas planned for another 30, Willis has said. Her team includes an expert on racketeering laws, often used in organized crime prosecutions.

Fulton County District Attorney Fani Willis was sworn into the job just three days after the Trump-Raffensperger call occurred. She has said that dozens of people have already been interviewed in the probe, which will be presented to a special grand jury. (Ben Gray/The Associated Press)

The special grand jury

The special grand jury proceedings are supervised by a Georgia Superior Court judge.

As many as 30 Fulton County residents will hear testimony and see documents. Unlike a regular grand jury, which sits for a fixed term and can hear many different cases, the special grand jury will be made up of laypeople singularly focused on this matter.

Willis has signalled that witnesses won't appear until June. The jury has subpoena power — so it can call more witnesses — but it would not have the power to indict Trump or anyone else.

"There is a cumbersomeness about the special grand jury in that it doesn't easily lend itself to sequential prosecution," said Clark Cunningham, who holds the W. Lee Burge Chair in Law & Ethics at the Georgia State University College of Law in Atlanta.

In other words, if a potential indictable offence is unearthed by, say, September, it won't be handed down then. It's expected instead that the special grand jury will issue a report and, from there, Willis could convene a grand jury — a judiciary body that does have the power to indict.

Who might the jury hear from

Raffensperger says he will appear if subpoenaed.

His 2021 book Integrity Counts depicts how Georgia had to "waste taxpayer resources" chasing down allegations and rumours of voting irregularities from Trump acolytes. As well, he details the state's manual count — which agreed with the original total — and a Cobb County audit that found few irregularities.

Georgia Secretary of State Brad Raffensperger rejected Trump's claims of widespread electoral fraud. He later wrote that he felt the president issued threats during their now-infamous phone call. (Ron Harris/The Associated Press)

During their call, Trump told Raffensperger it was "very dangerous" for the Georgia official to hold news conferences and tell the public nothing had been found to warrant changing the result.

"I felt then — and still believe today — that this was a threat," Raffensperger writes in his book.

Trump also beseeched other Georgia officials over the phone, including Gov. Brian Kemp, attorney general Chris Carr and election investigator Frances Watson.

"When the right answer comes out, you'll be praised," Trump is said to have told Watson, while she was overseeing the Cobb County audit. 

U.S. Attorney Byung Pak, the top federal prosecutor in Atlanta, left his position on Jan. 4, 2021, the day after an audio recording was made public in which Trump called him a 'never-Trumper.' (Ron Harris/The Associated Press)

Other witnesses might include federal attorneys Byung Pak and Bobby Christine, who could provide information into their fruitless efforts to uncover Georgia electoral fraud — and about who directed them to look.

All told, while Trump was aware of a number of close state races, he was focused on Georgia "like the eye of Sauron in Lord of the Rings," Cunningham said.

Who else might be scrutinized

Mark Meadows, White House chief of staff at the time, set up Trump's unprecedented phone calls and travelled to Georgia while the Cobb County audit process was underway.

Pak told a U.S. Senate committee he found that visit "highly unusual."

"I don't recall that ever happening in the history of the U.S," he said.

Mark Meadows, Trump's fourth and final White House chief of staff, could be under scrutiny by both Georgia investigators and the committee examining the election aftermath in Washington, D.C. (Al Drago/Reuters)

Sen. Lindsey Graham of South Carolina and lawyer Rudy Giuliani, Trump allies, also communicated with Georgia officials in the vote's aftermath. Giuliani's accusation regarding a Fulton County election worker and a suitcase of illegal ballots was debunked by federal and state investigators who saw unedited recordings from that venue. He also had his law licence suspended in New York over the false claims.

As well, 16 Georgia Republicans were conscripted to be alternate electors, producing a document affirming their state's votes for Trump. David Shafer, one of them, reportedly testified to the committee investigating the violence on Jan. 6, 2021, that they had done so at the Trump campaign's direction.

"It's very hard to see — some of them are lawyers — how they thought what they did was even remotely legal," Cunningham said.

WATCH | Georgia electoral official Gabe Sterling angered by 'suitcase' claim (Jan. 4, 2021):

Georgia election official: 'This has been thoroughly debunked'

2 years ago
Duration 2:52
Gabriel Sterling, Georgia's voting system implementation manager, accuses the legal team of U.S. President Donald Trump of intentionally misleading the public.

The stakes

Across the United States, Republican primaries this year are often pitting those who cling to the notion the 2020 election was "stolen" against those who think purposeful misinformation about the vote's validity is damaging to the party. Raffensperger is in a tight race against Rep. Jody Hice, who continues to assert that the state's 2020 vote was marred.

The U.S. in the past two years has seen jarring public anger directed at public health, education and government officials, culminating with the deadly Jan. 6, 2021, riot on the Capitol Building in Washington. Willis has requested extra security for the proceedings and a section of Atlanta is being blocked off to traffic, reflecting what will be extensive efforts to shield juror identities.

WATCH | Georgia electoral law changes after 2020 uproar criticized by Democrats:

Critics call Georgia’s new voting law voter suppression

2 years ago
Duration 2:03
Critics say Georgia’s new voting law, put in place after former president Donald Trump’s false claims of voter fraud, is aimed at voters suppression.

What will we know and when

The special grand jury's term is for one year, and it's conceivable Trump could announce another presidential bid before jurors are done.

But it's a mug's game trying to predict precisely how long the special grand jury will be seated or when a report will be produced.

Tamar Hallerman of the Atlanta Journal-Constitution recently laid out on a number of potential avenues the Trump legal team could employ to push back on the proceedings, but it should be noted the district attorney's office is not a congressional panel that has to schedule time to vote on contempt proceedings. Unlike the congressional committee in D.C., investigating the riot, which has endured drawn-out processes to deal with witnesses who have defied subpoenas, the Georgia body exists within the criminal justice system. That means it has both more mechanisms and more teeth to deal with unco-operative witnesses.

Witnesses are not legally bound to secrecy after appearing. We could hear some details about what's being discussed if they speak to reporters or to the Trump team.

The endgame

In a Brookings Institution report, a team of legal experts laid out the criminal offences Trump and some of his allies may have committed, including criminal solicitation to commit election fraud, conspiracy to commit election fraud and state racketeering violations. 

Hasen wrote a piece for Slate in early 2021 expressing skepticism Trump will ultimately be indicted for meddling in Georgia, and he seems to still hold that view.

"Even if there's a strong legal case, there might be reasons why a prosecutor might be quite reluctant to bring a case like this," he told CBC News, citing, as one example, that any potential jury will include Trump voters.

While Trump has a shelf life, other dishonest politicians will exist in the future. Therefore, Cunningham believes that if the conduct is found to be criminal, it may be even more important to American democracy to indict those who did the former president's bidding.

"As long as nobody faces criminal justice for this attempt to overthrow the election, we're in trouble."

ABOUT THE AUTHOR

Chris Iorfida

Senior Writer

Chris Iorfida, based in Toronto, has been with CBC since 2002 and written on subjects as diverse as politics, business, health, sports, arts and entertainment, science and technology.

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