Sunday, February 5, 2023

GA Special Grand Jury Trump Case Update

Geaogia's Fulton County District Attorney Fani Willis (D), called a Special Purpose Grand Jury, to investigation Trump and his allies’ attempts to overturn Georgia’s 2020 Presidential Election Results, has been underway for nearly Two years, and its Indictments are likely to come soon.

Here is a Summary of Charges that the Special Grand Jury, may recommend:

Election Related Crimes: Solicitation to Commit Election Fraud (GA Code Ann. §21-2-604(a)); Intentional Interference with performance of Election Duties (GA Code Ann. §21-2-597); Interference with Primaries and Elections (GA Code Ann. §21-2-566); and Conspiracy to commit Election Fraud (GA Code Ann. §21-2-603).

While the elements of these Charges vary, the crux of each Offense is that through conduct such as Trump’s Call to the Secretary of State’s Chief Investigator Frances Watson, urging her to find Fraud by departing from established Audit procedures, his call with Georgia Secretary of State Brad Raffensperger (R) demanding, and at times Threatening, that he “find 11,780 votes,” and the orchestration of the Fake Electors scheme, Trump pressured Georgia Officials to Change the Lawful Outcome of the 2020 Presidential Election in Georgia. The full extent of Trump’s actions before and after the Election provides clear and consistent intent to Solicit and Pressure Government Officials to Reverse the Election results.

Non-Election Related Crimes: Making False Statements (GA Code Ann. § 16-10-20); Improperly influencing Witnesses (GA Code Ann. § 16-10-93); Forgery in the First degree (GA Code Ann. 16-9-1); Criminal Solicitation (GA Code Ann. § 16-4-7); False Swearing (GA Code Ann. § 16-10-71)

Trump is alleged to have repeatedly Lied about the 2020 Election to Georgia Officials and to have used that Misleading conduct, as well as Intimidation and Threats, to push them to Change the Election outcome. Trump may have Committed the Crime of False Statements and improperly influencing Government Officials, when he repeatedly told Raffensperger that he Won the Election, as well as when he listed numerous Inaccuracies and Falsehoods about the Election. Because the Documents signed by the Fake Electors included Falsehoods about their Role and Authority in the 2020 Election, they may have committed False Swearing and Forgery in the First degree. Moreover, Trump and his allies may have Committed Criminal Solicitation, when they Solicited conduct from Georgia State Officials to Change the Election Results in Trump’s favor.

Georgia’s RICO Act (GA Code Ann. § 16-14-1 et seq.): The Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, recognizes that if Violations of Individual Criminal Statutes, by a Single Person are Bad, an Enterprise that repeatedly Violates the Law is Worse, and should be subject to Additional Sanction.

To be Charged, the Law requires a “pattern” of Misconduct as shown by Violations of Two or more specified Crimes, including the False Statements or improper Influence Crimes mentioned above. Experts believe that RICO Charges are a very real possibility for Trump, based upon his repeated Calls to Election Officials, False Statements, and alleged Coordinated attempts to provide Fraudulent Electoral Certificates.

Upcoming Legal Issues: Empanelling a New Grand Jury: A Special Purpose Grand Jury, serves an Investigative function and only focuses on One Case or Issue, unlike a Regular Grand Jury, which might hear Evidence in Hundreds of Cases. Although Special Purpose Grand Juries in Georgia typically investigate Public Corruption, they are a useful vehicle to Investigate Complex Issues of Inquiry, and allow a Jury to develop a deeper understanding of the Issues. Special Purpose Grand Juries are Not subject to the typical Two-month fixed term of Regular Grand Juries in Georgia, but rather are empaneled for any time period required to complete their Investigation.

Unlike a typical Grand Jury, a Special Purpose Grand Jury cannot return a “True Bill” of Indictment. They can however issue Public Reports after review by a Supervising Judge. The Report can recommend Indictments for Criminal acts uncovered during the Investigation, but it Cannot recommend iIdictments against Specific Persons. Willis can then pursue Indictments of any Recommended Crimes through a Regular Grand Jury. So, even if the Special Grand Jury made recommendations in its Report, Willis will need to ask the Regular Grand Jury to Indict. In Fulton County, the Regular Grand Jury is always Empaneled and it meets every Tuesday and Friday.

Right to Speedy Trial: Defendants in Georgia have a Constitutional Right and a State Right, to demand a Speedy Trial. The Right to a Speedy Trial applies when a Person is formally Charged, Accused of a Crime, or Indicted. Under Georgia Law, a Criminal Defendant must be brought to Trial, by the next succeeding Regular Court Term of their Arrest.

In Fulton County, Defendants who are Indicted can request Speedy Trials, that begin by the Close of the Term that follows, the Two-month period in which they are Indicted. Regular Grand Juries, as opposed to a Special Purpose Grand Jury, in Georgia serve for Two-month Terms. Because of this, most Charges are brought at the beginning of a New Grand Jury Term. In this Case, Charges may be brought in early March, when the Next Grand jJry Term begins.

Trump’s Lawyers will likely argue a Variety of Defenses that either Downplay his Conduct or seek to Shield it from Prosecution. This includes the following Defenses:

Immunity: Immunity is the contention that Trump is Protected as a Federal Official from Infringements on Authorities vested in him by the Constitution or Federal Law. It exists to Protect the President’s exercise of Discretion in doing his job, but does Not extend to Actions taken Outside the Scope of his Lawful duties. Neither the Constitution nor Federal Law confers any Authority on the President over the Process of Counting or Tabulating Ballots or Certifying an Election. This is Constitutionally committed to the States.

First Amendment: The First Amendment protects Speech, including Political Speech. However, Speech integral to Criminal Conduct, such as Fighting Words, Threats, and Solicitations, are categorically Outside of First Amendment Protection. Free Speech is No longer Free when the Speech is False or Harmful, it is then just Speech

Intent: The Factual Defense Trump is likely to Claim, is that he was pressing his good-faith conviction that he had actually Won, that he was trying to Secure the Correct Outcome of the Election. But a Candidate who believes he has won the Election, does Not enjoy any Legal Protection to commit Crimes in furtherance of that Belief. Moreover, the January 6th Select Committee’s Final Report is replete with Evidence that Trump was repeatedly told he Lost the Election and yet engaged in Criminal Conduct anyway.

Selective/Retaliatory Prosecution: A claim of Selective/Retaliatory Protection requires showing you were treated Differently than similarly situated Persons; there is No Evidence of that in this Case.

All of these Defenses should Fail. In the coming weeks, Trump is very likely to be Charged with multiple Crimes in Georgia. No one is above the Law.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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