OPINION:
The best way to think about Georgia’s sprawling indictment against Donald Trump and his allies is that it is a case about lies. It’s about lying, conspiring to lie and attempting to coax, coerce and cajole others into lying. Whereas the attorney general of Michigan just brought a case narrowly focused on the alleged fake electors in her state (Trump is not a defendant in that one), and special counsel Jack Smith brought an indictment narrowly focused on the former president’s efforts to overturn the 2020 election, Fulton County District Attorney Fani Willis has brought a case about the entire conspiracy, from start to finish, and targeted each person subject to her jurisdiction for each crime committed in her jurisdiction.
In other words, this indictment is ambitious. But it also answers two related questions: Why bring yet another case against Trump in yet another jurisdiction? Isn’t he going to face a federal trial in Washington DC for the same acts outlined in the Georgia indictment?
The answers lie in the distinctions between state and federal law. Georgia law is in many ways both more broad and more focused than the federal statutes at issue in Smith’s case against Trump. The breadth is evident from the racketeering charges. As Norm Eisen and Amy Lee Copeland have written in The New York Times, Georgia’s racketeering statute allows prosecutors to charge, among other crimes, a number of false statement statutes as part of a generalised criminal scheme. In other words, rather than seeing each actionable lie as its own, discrete criminal act, those lies can also be aggregated into part of a larger whole: an alleged racketeering enterprise designed to alter the results of the Georgia presidential election.
Yet it’s the focus of Georgia law that’s truly dangerous to Trump. The beating heart of the case is the 22 counts focused on false statements, false documents and forgery, with a particular emphasis on a key statute: Georgia Code Section 16-10-20, which prohibits false statements and writings on matters “within jurisdiction of state or political subdivisions.” The statute is a state analog to a federal law, 18 USC Section 1001, which also prohibits false statements to federal officials on matters within their jurisdiction, but the Georgia statute is even more broad.
Simply put, while you might be able to lie to the public in Georgia — or even lie to public officials on matters outside the scope of their duties — when you lie to state officials about important or meaningful facts in matters they directly oversee, you’re going to risk prosecution. Yet that’s exactly what the indictment claims Trump and his confederates did, time and time again, throughout the election challenge.
The most striking example is detailed in Act 113 of the indictment, which charges Trump with making a series of false statements to Georgia’s secretary of state, Brad Raffensperger, and his deputies in the former president’s notorious January 2, 2021, telephone call. Most legal commentators, myself included, had focused on that call because it contained a not-so-veiled threat against Raffensperger and his counsel. In recorded comments, Trump told them they faced a “big risk” of criminal prosecution because he claimed they allegedly knew about election fraud and were taking no action to stop it.
Willis’ focus, by contrast, isn’t on the threats, but rather on the lies. And when you read the list of Trump’s purported lies, they are absolutely incredible. His claims aren’t just false, they’re transparently, incandescently stupid. This was not a sophisticated effort to overturn the election. It was a shotgun blast of obvious falsehoods.
Here’s where the legal nuances get rather interesting. While Willis still has to prove intent — the statute prohibits “knowingly and willfully” falsifying material facts — the evidentiary challenge is simpler than in Smith’s federal case against Trump. To meet the requirements of federal law, Smith’s charges must connect any given Trump lie to a larger criminal scheme. Willis, by contrast, merely has to prove that Trump willfully lied about important facts to a government official about a matter in that official’s jurisdiction. That’s a vastly simpler case to make.
Yes, it is true that the individual lying allegations are also tied to much larger claims about a criminal conspiracy and a racketeering enterprise. But if I’m a prosecutor, I can build from that single, simple foundation: Trump lied, and those lies in and of themselves violated Georgia criminal law. Once you prove that simple case, you’ve laid the foundation for the larger racketeering claims that ratchet up Trump’s legal jeopardy.
Compounding the danger to Trump, presidents don’t have the power to pardon state criminal convictions, and even Georgia’s governor doesn’t possess the direct authority to excuse Trump for his crimes.
If Trump’s comments on Truth Social are any indication, he may well defend the case by arguing that the Georgia election was in fact stolen. He may again claim that the wild allegations he made to Raffensperger were true. That’s a dangerous game. The claims are so easily, provably false that the better course would probably be to argue that Trump was simply asking Raffensperger about the allegations, not asserting them as fact.
But if Trump continues to assert his false claims as fact, then Willis has an ideal opportunity to argue that Trump lied then and is lying now, that he’s actively insulting the jury’s intelligence just as he insulted the nation’s intelligence when he made his claims in the first place.
But declaring that the core of the Georgia case is simpler than the federal case does not necessarily mean that it will be easier to try. Willis chose to bring claims against 19 separate defendants, and she said she intended to try them together. While that decision makes some sense if you’re trying to prove the existence of a sprawling racketeering enterprise, it is also a massive logistical and legal challenge. Moreover, Trump is likely to try to move the case to federal court, which would require him to demonstrate that his actions were part of his official duties as president, a formidable task given that he was interacting with Georgia officials in his capacity as a candidate. But if successful, it would expand the available jury pool to include more Trump-friendly areas outside Fulton County.
These challenges, especially when combined with Trump’s upcoming criminal trials in Washington DC, Manhattan and Florida, make it difficult to see how Willis can possibly bring this case to trial within the six months that she has said is her preference.
For eight long years, Americans have watched Donald Trump lie. Those lies have been morally indefensible, but some may also be legally actionable. Trump’s campaigns and presidency may have been where the truth went to die. But the law lives, and the law declares that Trump cannot lie to Georgia public officials within the scope of their official duties. If Fani Willis can prove that he and his confederates did exactly that, then she will prevail in the most broad, most consequential prosecution in modern American political history.
- David French is a New York Times columnist
This article originally appeared in The New York Times.
Written by: David French
Photographs by: AP and Hilary Swift
©2023 THE NEW YORK TIMES
