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Potential election crimes that may be on the table for Georgia prosecutors include: (1) solicitation to commit election fraud, Ga. Code Ann. § 21-2-604(a); (2) intentional interference with performance of election duties, Ga. Code Ann. § 21-2-597; (3) interference with primaries and elections, Ga. Code Ann. § 21-2-566; and (4) conspiracy to commit election fraud, Ga. Code Ann. § 21-2-603. While the elements of these crimes vary, the gravamen of these offenses is that through conduct such as the call to Raffensperger demanding that he “find 11,780 votes” and the potential orchestration of the false electors scheme, Trump may be shown to have exhorted Georgia officials to change the lawful outcome of the election. Trump’s full course of conduct before and after the election suggests clear and consistent intent to solicit and pressure government officials to reverse the election results.

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In addition, evidence suggests that Trump and his cohort, including the false electors, may have committed other crimes outside of the election title, such as: making false statements, Ga. Code Ann. § 16-10-20; improperly influencing government officials, Ga. Code Ann. § 16-10-93; forgery in the first degree, Ga. Code. Ann. § 16-9-1; and criminal solicitation, Ga. Code Ann. § 16-4-7.

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In December 2020, Trump reportedly began to place calls directly to Georgia officials, including Governor Brian Kemp and Attorney General Chris Carr, to urge them to support efforts aimed at decertifying his loss. Trump’s personal lawyer, Rudy Giuliani, appeared before the Georgia legislature and presented false allegations of fraud and misrepresented the law in an attempt to convince state lawmakers to take extraordinary action to reverse Biden’s win. Later, when his own acting attorney general refused to use the Justice Department in support of Trump’s efforts, Trump maneuvered to install a loyalist atop the department who planned to send a draft letter designed to mislead and influence the Georgia legislature into convening to overturn the election results. Additionally, Trump campaign officials reportedly helped coordinate Republican state officials to meet on December 14, 2020 to sign and submit to Congress and the National Archives a false electoral certificate purporting to show Trump’s victory in the state.

Finally, as the January 6 congressional certification of Joe Biden’s victory neared, Trump called Secretary of State Brad Raffensperger on January 2. In the call, Trump both threatened and pleaded with Raffensperger to “find” 11,780 votes, thereby tilting the state’s presidential election in his favor.

Based on these facts and a litany of additional public reporting, Trump appears to be at substantial risk of prosecution for both election and non-election crimes in violation of Georgia state law.

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Trump may face charges for possible violations of Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. The statute 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. Willis has experience prosecuting RICO cases, and her investigatory team includes a RICO expert.

  Brookings

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