The Daily - Is a Local Prosecutor Making the Strongest Case Against Trump?

Episode Date: August 29, 2022

Since he left office, former President Donald J. Trump has been facing several investigations.They include the congressional inquiry into the Jan. 6 attack at the Capitol and the F.B.I.’s search of Mar-a-Lago, his club and Florida residence, as part of an investigation into his handling of classified material.Of all the government investigations, the one that is receiving the least attention — a case being made by a local prosecutor in Georgia — may end up being the most consequential.Guest: Richard Fausset, a correspondent based in Atlanta for The New York Times.Background reading: Over a year into a criminal investigation of election interference by Mr. Trump and his allies, a Georgia prosecutor is beginning to show the broad contours of her inquiry.Fani T. Willis, the Atlanta area district attorney, is seeking to build a broad conspiracy case that encompasses multifaceted efforts by Trump allies to disrupt and overturn the 2020 election.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, of all the government investigations now underway into Donald Trump, the one that is receiving the least attention may end up being the most consequential. least attention may end up being the most consequential. My colleague, Richard Fawcett, on the case being made by a local prosecutor in Georgia. It's Monday, August 29th. So Richard, at the outset here, I want to explain why we're having this conversation with you. We at The Daily have covered many of the investigations stemming from the final days of Donald Trump's presidency.

We have covered the Department of Justice probe into his efforts to overturn the 2020 election results. We've covered the congressional investigation into his role in inciting the January 6th riot. And we've covered the FBI search for classified documents that Trump took to Mar-a-Lago. But there's one investigation into Trump that we've never really covered on the show, and that's the one unfolding right now in Georgia. And that's because, honestly, we didn't quite know what to make of it. Well, it makes a certain kind of sense that this investigation would fly under the radar for a lot of people. You know, Atlanta is just far from the traditional kind of hallways of power nationally.

Right. And it's just a really unique situation where you have a local prosecutor who's looking into a matter of just tremendous national importance. And we've known that the local district attorney down here has been investigating, but it's only in recent weeks that we've really seen it start to heat up. And we're really getting a sense of the contours and the big, broad scope of what appears to be a very ambitious investigation. the big, broad scope of what appears to be a very ambitious investigation. Well, tell us about that. What is the story behind this investigation? Well, at the heart of this investigation is the local prosecutor here in Atlanta. This office is about the people of Fulton County, and the people of Fulton County deserve the very best.

Her name is Fani Willis. She's a Democrat. She's African-American. She's a very talented prosecutor. And she was elected at the same time that Donald Trump lost his election. I'm going to be the first woman district attorney of Fulton County. And I'm going to make this community proud.

I'm going to make this community safer. She ran on a platform that was kind of a mix of criminal justice reform and also being tough on crime. I will charge each and every one of those persons that violates the law, but I will not charge anyone unless due process is done, which means we are going to give them a proper investigation. She said during her election that she was the kind of prosecutor who didn't like bullies, although I think she also would argue there's some real excesses in the criminal justice system.

I just think we can save people. And at the same time, I don't want any of your listeners to be confused. I am a prosecutor at my heart and at my soul. I'm a prosecutor at my heart and at my soul. So she's a prosecutor, I think you could argue, is very much kind of old school. You know, she's tried dozens of very big cases in this city. And, you know, we normally think of a district attorney as somebody who does exactly that, who goes after local corruption cases, who tries people for murder and other kinds of local crimes. But what happened here is you had a situation where Georgia became an object of intense interest to President Trump and his allies. It was a very close election here. President Trump believed he had a lot of Republican allies in this state who might be able to help him overturn his election loss.

And this case kind of ends up landing on her desk in a way because of the fact that a lot of the alleged misdeeds just happened to take place in Fulton County, in downtown Atlanta, Georgia, in the heart of Fannie Willis's judicial district. Right. It was basically the scene of the alleged crime. Yeah, exactly. It was the scene of the alleged crime. Yeah, exactly. It was the scene of the alleged crime. So once this lands in her lap, what became her legal strategy? So we know that she's casting an extremely wide net in this investigation as she tries to get to the bottom of what exactly happened in Georgia after the election. And we know that she is looking at this vast and kind of weird list of people who one way or another are entangled in this investigation, be they

targets of the investigation or witnesses. We have Senator Lindsey Graham. We have former Mayor Rudy Giuliani, who is serving as President Trump's personal lawyer. We have a number of Georgia Republicans, some well-known, like the head of the state Republican Party, and some who are much more obscure. We have a woman who was a self-identified publicist for the rapper Kanye West, who made a trip down to Georgia, ostensibly on President Trump's behalf after the election. So you can really see just kind of the contours of this thing, how broad they are. And what a lot of experts are telling us is that it's showing that Fannie Willis may very well be pursuing racketeering charges against numerous people under what's known as the Racketeer Influenced and Corrupt Organizations Act, or RICO. When I hear the word racketeering, I immediately think of the mafia, not the 2020 election.

So remind us what exactly it means to bring a racketeering charge and how it might actually apply to the 2020 election. So remind us what exactly it means to bring a racketeering charge and how it might actually apply to the 2020 election. So we think about racketeering very often in terms of the federal racketeering law and how it's been used in the past, indeed, to go after a number of mafia figures. In fact, Rudy Giuliani, who has been identified as a target in this investigation, earned a lot of ink back in the 80s when he went after some of the most prominent mafia families in the New York area using the federal RICO law. And the idea of RICO is based on this sense that sometimes it can be very hard to sort of outline the full extent of a criminal enterprise. The mafia provides some just really good, vivid examples. So, you know, you might

have some cops who pick up a kid for burning down a restaurant because he had, you know, the gas can with him. And in some other borough, maybe you had somebody pimping and running prostitutes. Well, you can run up those people on charges, but if the goal is to really take out an organized crime organization, those tools don't exactly work. So with RICO, you sort of establish this idea of a criminal enterprise and you say, okay, here's how it works. And those pieces and parts of the organization don't have to necessarily all be talking to one another or know the exact shape of the full thing. But they're all kind of committing these acts in furtherance of the criminal enterprise's criminal goal.

And so in the case of the mafia, that's pretty obvious, right? To make money by running all kinds of rackets, like the numbers game, prostitution, et cetera. kinds of rackets, you know, like the numbers game, prostitution, etc. In this case, if Fannie Willis really is putting together a RICO case based on the state RICO law, which is very similar to the federal RICO law, the idea, ostensibly, is that the criminal enterprise in this case is the Trump campaign itself. Hmm. So the idea behind racketeering, behind RICO, is that there's some kind of a conspiracy going on toward an illegal end. Lots of individual illegal acts may be involved, but they are all tied together. Usually that's been applied to things like the mob, and here it could be applied to Donald Trump's efforts to overturn the 2020 election. Yes. And I think when it comes to questions, not only of criminality,

but thinking about the healthy functioning of our democracy, you know, I don't know this for sure, but I think for those of us watching this, we think that, okay, you know, if she gives us a really broad, detailed roadmap that ties together the myriad efforts

to undermine democracy in Georgia, it'll be of greater benefit than to just see them through the lens of individual acts. We'll be right back. So how is District Attorney Willis actually building this case, this theoretical racketeering case, so far based on her actions and your reporting? So, no, I think theoretical is a really good way to talk about this right now because we really don't know where prosecutors are going to end up, if and when they bring a case. But it's very clear that prosecutors are honing in on at least three areas in this investigation. The first is calls. The Atlantic Journal-Constitution reports that Trump called Georgia Governor Brian Kemp this morning. This includes calls made by President Trump to a

number of Georgia officials, including Georgia's governor, Brian Kemp, a fellow Republican. Trump asked for the governor's help to overturn Georgia's election win for Biden. He's also been putting pressure on other officials in the state, including the secretary of state there. And a phone call he made to Brad Raffensperger, the Secretary of State. So, Mr. President, everybody is on the line. This is a recorded phone call that's now become somewhat infamous. So, look, all I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state.

In which President Trump asked Brad Raffensperger to, quote, find the number of votes that he would need to overtake Joe Biden's lead in the state and therefore win it for himself. So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break. So Richard, if we imagine that a call like this is an element of a conspiracy, how does Trump calling Raffensperger and making this very unusual request break the law, potentially? calling Raffensperger and making this very unusual request, break the law, potentially. So I'm not a lawyer, but the people we've talked to have pointed out that there are laws in the books in Georgia against election fraud, against the conspiracy to commit election fraud. There's also a statute that deals with the intentional interference with the performance of election duties, which talks about people who may interfere with, hinder, or delay attempts of a public official to perform their election duties. These laws are not used very often in Georgia. This kind of stuff

doesn't happen very much, but they're also very clear in a way. And this is one of the reasons why some legal observers think that President Trump could be in some particularly serious legal peril in Georgia. Hmm. So even though Raffensperger didn't find the votes the way Trump asked, it's still potentially illegal for Trump to have asked him to because he's kind of recruiting Raffensperger to participate in something that would be illegal. I mean, that's one possible interpretation. I think this is a good moment to say that we're starting to see some of the contours of President Trump's pushback. And I think that's going to end up including an argument that when President Trump made that phone call to Brad Raffensperger, there were attorneys from both sides on the line, and that this was an effort to sort of work out some complicated

legal questions and work out some kind of resolution to an unresolved issue. And that's the kind of thing that people do with their lawyers on the line all the time, at least powerful people. Right. Just discussing possibilities. Sure. We're talking. Got it. So what's the second potential pursuit by the DA in this theoretical racketeering case? Sure. So there's a second kind of bucket. We will begin with the first witness, and we have with us today. And that involves? Mayor Rudy Giuliani. A number of misstatements that Rudy Giuliani, who at the time was acting as Mr. Trump's personal lawyer, made, along with a number of pro-Trump allies, before a couple of Georgia state legislative bodies shortly after the election.

So this is our fourth or fifth hearing. So basically during testimony. Yeah, these were very dramatic moments. This is a terrible, terrible constitutional crisis we're in. Mr. Giuliani made claims of nefarious intent. But in my view, it was part of a concerted plan. Because certain cities were picked in order to carry this out where they thought they could get away with it.

They didn't do it everywhere. There was an allegation that voting machines. This is not a machine you want counting your votes. It altered the outcome of the election. But it does cast doubt on the entire legitimacy of the vote. He made a case that there were a couple of African-American elections workers on a tape. How can they say there's no fraud? Look at that woman. Look at her taking those ballots out.

Look at them scurrying around with the ballots. Nobody in the room, hiding around. That were seen to be passing around some kind of USB ports or hard drive or something. Quite obviously, surreptitiously passing around USB ports as if they're vials of heroin or cocaine. I mean, it's obvious to anyone who's a criminal investigator or prosecutor, they are engaged in surreptitiously illegal activity. None of which proved to be true.

If you don't stop it the first time you catch it, this is when you go down. This is when you go down. it. This is when you go down. This is when you go down. So put those false statements into the context of a racketeering case. Well, one thing to keep in mind is that there is a statute prohibiting false statements to Georgia state officials that could land somebody like Mr. Giuliani in hot water. I think with these examples, like many of the other examples, the question to keep in mind in terms of racketeering is whether or not these were acts that were in furtherance of the ultimate criminal goal of the enterprise. So in the context of the district attorney trying to prove a conspiracy here, it seems that she's approaching Giuliani's misstatements to Georgia lawmakers as evidence that multiple

people are acting seemingly in concert with the goal of overturning the election. Yeah, I think that's an argument that the district attorney would likely make if she does, in fact, bring this as a RICO case. But I think Rudy Giuliani would tell you, yeah, I'm not really in a position to tell you whether or not that gets them off the hook or puts them on the hook, but I think that's going to be a big part of any defense that Mr. Giuliani and others like him are going to mount. Right. Okay. What's the third area that the district attorney is pursuing?

So the third area has to do with the fake elector scheme. So in our presidential election system, there's kind of a winner-take-all situation usually in the states where if the popular vote is won by a presidential candidate, all of that state's electors pledge their votes to the person who won that state in the electoral college. And it's, in fact, the electoral college count that determines who actually wins the presidential election. This is CNN Breaking News. So in Georgia, you have this very close-fought election. CNN has now projected that President-elect Joe Biden will win the state of Georgia.

It's won narrowly by Joe Biden. Georgia's Republican secretary of state said Thursday, Joe Biden clearly beat Donald Trump to win Georgia's 16 electoral college votes. And on the same day that the legitimate electors for Joe Biden assembled at the Georgia state Capitol. I will start by stating that I cast my vote for President Joe Biden. You had this alternate meeting to put forth alternate electors who supported Donald Trump. We have these new emails that are coming to light

that show the Trump campaign actually told these fake electors, these fake slates of electors in Georgia, to use complete secrecy regarding their plans. In the case of Georgia, this was 16 Republicans who signed paperwork saying that they were the electors from Georgia and they were going to be supporting President Trump. The plan was that on January 6th, as Vice President Mike Pence presided over the certification

process of the election in Congress, Pence would use those fake electoral college votes to overturn Georgia's results and declare Joe Biden, not the president of the United States, but actually declared Donald Trump for a second term. So that was the plan. And it's a plan that just involved numerous people by its very definition. You had these 16 so-called alternate electors. Some of them were really obscure members of the Georgia Republican Party, like local activists and stuff. Some of them were very high profile, like the head of the state Republican Party, like a state senator, Burt Jones, who is now the nominee for his party in the lieutenant governor's race here in Georgia.

Fannie Willis has identified all of those fake electors as targets for investigation, meaning they could potentially face indictment at some juncture. Fascinating. Okay, so when we think about the three strands you just talked about, based on everything you've said about the potential for a racketeering case, it seems the district attorney is going to attempt to make the case that they're all connected, they're not scattershot, they're not separate. They should be seen as an effort to further this, she would say, illegal goal of trying to overturn the election. They're three legs of the same stool. So what happens now?

Well, just to be clear, we know that she's looking into the possibility of this being one way that the charges can go down. I mean, this whole thing could end up with there not being any charges against anybody. And it's probably good to note here exactly where in the timeline this investigation is, because it's a bit unique, certainly for Georgia. You know, Fannie Willis is a prosecutor in a big city. It's got a big crime problem. It's got a COVID backlog of serious cases. For that and for other reasons, she asked the local court system to create what's called a special purpose grand jury, to create what's called a special purpose grand jury, with its sole focus being on this big kind of ugly enchilada that happens to involve, you know, the very functioning and health of our

democracy, ostensibly, a big task. So this special purpose grand jury is a group of Georgia residents who meet in secret behind closed doors a number of days a week. They have a year to finish up their work. The clock started ticking in May. And they have been looking at evidence presented to them by prosecutors and hearing from people who've been called in, who've been subpoenaed to give testimony. It's going to be up to these citizens of Georgia to decide whether or not there's a

basis to recommend that charges should be brought. So this is kind of just stage one. Fascinating. At the end of their work, which could happen sooner than one year from May, they will issue a report that says, here's what we think. This person violated this law, perhaps. This person violated this law, perhaps. And person violated this law, perhaps. And that report will go to a regular grand jury, the kind of grand jury that gets people for a grand theft auto and for attempted murder and all that sort of stuff. And it is that grand jury that will decide whether or not to bring indictments against any of these people. It's really interesting that regular Georgians in two sets of grand juries, many of whom I suspect are voters, in the 2020 presidential election are going to be the ones to render a verdict about whether or not the activities of Donald Trump and his allies were illegal.

You're right. This is very much in the hands of the residents of Fulton County, which it's worth noting is very much a Democratic Party stronghold. The allegation that someone was trying to steal this election by basically nullifying Democratic votes could take on a very personal dimension for the people who end up handling this case. Hmm. So I'm curious, based on your reporting, how likely this case is to result in a conviction for any of the people involved in his efforts to overturn the 2020 elections, and even for his role in the January 6th attack, let alone to secure convictions for his conduct. In fact, the only people who have been held accountable for attempting to keep Trump in power after he lost are those who rioted at the Capitol on January 6th. So how much of a chance is there really that someone at the level of Donald Trump or Rudy Giuliani ever gets convicted

in a place like Georgia? Well, that's a really good question. And, you know, we've seen so many times ways in which President Trump has been able to skirt any kind of responsibility for behavior that people have found to be questionable, if not illegal. But in the case of the Georgia investigation, what the potential defendants are going to be confronted with is Georgia state law. And a number of experts have looked at some of the potential crimes that some of these people could face.

And there's just a lot of very plain language. And there certainly is an interpretation out there that some of these people may have just, you know, even to a layperson, have violated the spirit and the letter of these laws. They're not super complicated laws. It's interesting you use the word super complicated law because super complicated law is what the federal government has to deal with when it thinks about January 6th, for example, sedition or defrauding the American public. There's nothing simple about charges like that. Yeah. And there's another dimension to the complications for somebody like Merrick Garland, the attorney general. He's appointed by Joe Biden. And we've seen play out in a very dramatic way in the last few days and weeks, this concern that the Department

of Justice and going after Trump and some of these other investigations is going after their chief political rival. Well, Fannie Willis, the district attorney in Fulton County, doesn't have to deal with those things. She is a Democrat. She's an elected official. But her actions don't necessarily get scrutinized in the same light as somebody like the attorney general or the Department of Justice. She's just a lawyer trying cases in a courthouse pretty far from Washington. So in that way, this kind of out of the way, under the radar, way far away from the corridors of power investigation being done by this district attorney is unburdened by the issues facing the federal government and based on how you described the laws, might stand a better chance of succeeding than perhaps a federal investigation. Yeah, and I think that sense of a more uncomplicated mission is one that Fannie Willis has really embraced in her rhetoric on this case. And it kind of gets back to that

previous thing she said, you know, I don't like a bully. And the fact that she is this kind of classic old school prosecutor, I think she's somebody who believes that there should be consequences for people who violate the laws of the state of Georgia. And you can just sort of see how this presents a very unique sense of potential peril for President Trump and for the people around him. And if it comes to pass that this local prosecutor is the person who ends up indicting President Trump or brings a successful case against President Trump. I think it'll say a lot about the way our system of laws works in this country, that we automatically think about the way federal law sort of exists on a kind of higher plane than local law. But local laws matter.

Local law is very explicit on questions like solicitation to commit election fraud in the state of Georgia. They're buried in a big book of statutes that really pretty much only Georgia lawyers know about. But they're there, and they're very real, and they could have very real consequences for some very powerful people who really haven't spent all that much time in Georgia. Well, Richard, thank you very much. We appreciate it. Nice talking to you. Thanks. Since we spoke with Richard, the Times reported that Fonny Willis may be broadening her investigation to include activities that took place outside of Fulton County, including an attempt by allies of President Trump to improperly obtain data from a voting system in rural Georgia.

Such data breaches, all coordinated by supporters of Trump, occurred in multiple states and may have been an effort to show that there was election fraud. No such fraud has ever been proven. We'll be right back. We'll be right back. fears of a potential nuclear disaster. In response, Ukraine conducted emergency drills and handed out potassium iodide, a drug that can protect people from radiation-induced thyroid cancer, to tens of thousands of people who live nearby. The nuclear plant, which is Europe's

largest, is now under Russian control but is operated by Ukrainian workers. In an attempt to defuse the situation, nuclear inspectors from the United Nations are expected to visit the plant in the coming days. Today's episode was produced by Rachel Quester and Rob Zivko, with help from Diana Nguyen. It was edited by Paige Cowett, fact-checked by Susan Lee, contains original music by Marion Lozano and Rowan Emisto,

and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.