Middleboro Review 2: POLITICO NIGHTLY: The legal threat to Trumpworld in Georgia

Saturday, July 30, 2022

POLITICO NIGHTLY: The legal threat to Trumpworld in Georgia

Fulton County District Attorney Fani Willis in her office in Atlanta. | AP Photo/John Bazemore

GEORGIA ON MY MIND — In the wake of the Jan. 6 select committee’s hearings, there have been plenty of questions about Attorney General Merrick Garland’s handling of the investigation into the events leading up to the siege of the U.S. Capitol. But the probe of another prosecutor — Fani Willis, the district attorney in Fulton County, Georgia — has increasingly attracted the attention of the national media and legal observers, following a series of attention-grabbing investigative steps that have put the office in direct conflict with some key participants in former President Donald Trump’s effort to overturn the election.

The characters and many of the accusations are probably familiar to those who have been following Trump’s other legal battles. Let’s explore what makes this probe unique:

What has Willis’s office been up to?

Prosecutors in Willis’s office have been conducting a criminal investigation since early last year that originated with ‘The Call’ between Trump and Georgia Secretary of State Brad Raffensperger. There was little in the way of publicly observable investigative activity until this past May, when a judge approved a request by the office to convene a special grand jury with subpoena power to gather evidence and to compel the appearance of witnesses. (Raffensperger, for instance, had apparently insisted on a subpoena to obtain his testimony.)

In recent weeks, the office has subpoenaed an array of Trump-adjacent figures, including lawyers John Eastman and Rudy Giuliani, who were reportedly integral to the former president’s elaborate effort to fight the election results; Sen. Lindsey Graham (R-S.C.), a Trump ally who, according to Raffensperger, may have improperly suggested that the state disregard lawful mail-in ballots in order to help Trump; and Rep. Jody Hice (R-Ga.), who reportedly worked with Trump’s team to try to prevent the certification of Joe Biden’s victory on Jan. 6.

The office also identified the 16 Republicans who served as Trump’s “alternate” electors in the state as “targets” of the probe. Early this week, however, a judge criticized DA Willis’s decision to host a fundraiser for the opponent of one of those electors — a Republican state senator who is running for lieutenant governor. The judge concluded that Willis’s actions created “a plain — and actual and untenable — conﬂict” and that prosecutors had to outsource any case against him to another office in the state.

What sorts of laws might be at issue?

Georgia has a variety of statutes related to election fraud that may be implicated by the conduct under investigation, as well as a broad anti-racketeering law that has drawn some attention.

How nervous should Trump be about this?

That remains unclear. It’s not good if a prosecutor subpoenas your lawyers and allies as part of an investigation into efforts to overturn the lawful results of an election, particularly if your own involvement was memorialized in a recording that sparked national outrage and raised legal questions .

That does not mean, however, that Willis has a clear path to charging Trump himself.

State-level criminal investigations and prosecutions are often looser and less predictable than federal criminal investigations, as the recent ruling against Willis demonstrated. Recalcitrant figures in a probe of this complexity can also make things difficult for prosecutors by fighting subpoenas , lodging jurisdictional challenges and invoking privileges. Those sorts of efforts can take time for courts to resolve.

The Washington Post also recently reported that “[t]here are no reported appellate cases interpreting the election law statutes that prosecutors are likely to scrutinize, while Georgia’s anti-racketeering law was not necessarily intended for cases of election interference.” That is a vacuum of sorts that could provide fodder for legal challenges if prosecutors ultimately get around to charging people.

The general sense in some precincts of the media that Willis’s office’s investigation is moving inexorably to some sort of showdown with Trump may ultimately prove correct. Still, some caution is in order given recent history and the record of many legal observers when it comes to Trump. In March of last year, for instance, the hosts of an ostensibly reputable legal podcast speculated that Willis might indict Trump in a matter of days — a prediction that, needless to say, did not come to fruition. That claim, though, inadvertently highlighted a fundamental fact of anti-Trump legal commentary, which is that there is generally no penalty for being wrong as long as you’re predicting Trump’s eventual demise.

It was also not that long ago that many of the people now focused on Willis’s probe were touting the investigation into Trump’s finances by the Manhattan District Attorney’s office, which appears to have petered out for the time being. An author of a Brookings report that analyzed the Georgia probe recently penned an op-ed for the New York Times praising Willis and touting “the vast amount of relevant proof of possible Georgia crimes,” but after the Manhattan DA’s office criminally charged the Trump Organization and its CFO last summer, the same person predicted that the office was “on the brink of a much larger case against Trump and his businesses.”

Of course, that is not how things played out . And Allen Weisselberg — who some pundits confidently predicted would quickly flip against Trump — has yet to stand trial and has shown no signs of cooperating against Trump anytime soon.

Willis’s probe is worth watching closely, but as with all things when it comes to Trump and his legal battles, it is best not to presume that anyone knows the outcome for certain.

Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at ankush.khardori@gmail.com.

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WHAT'D I MISS?

— DOJ accuses Russian operative of conspiring with U.S. groups to push propaganda: The Justice Department today unsealed an indictment in Tampa charging a Russian operative with conspiring to influence unnamed groups in Florida, California and Georgia to interfere with U.S. elections and further Russian propaganda. The DOJ accused Aleksandr Viktorovich Ionov of working for at least seven years on behalf of the Kremlin to recruit and pay American groups to “publish pro-Russian propaganda.” Ionov is not currently in custody.

— Blinken and Russian foreign minister discussed proposal for Griner, Whelan: Secretary of State Antony Blinken urged Russian Foreign Minister Sergey Lavrov to accept a “significant proposal” to bring home Americans Brittney Griner and Paul Whelan , Blinken told reporters today. Blinken would not characterize Lavrov’s responses, or say whether an agreement was “any more or less likely” after the call.

— The Manchin pressure campaign: CEOs, labor bosses and Bill Gates: After Joe Manchin balked at the clean energy incentives in Democrats’ spending bill two weeks ago, clean energy manufacturing companies helped orchestrate a 13-day effort to change his mind , more than 20 people involved in the effort told POLITICO — eventually helping to get his backing for the $369 billion in incentives in the newly dubbed Inflation Reduction Act. That push — which two people involved said included a call from Bill Gates, whose venture capital firm has backed a West Virginia-based battery start-up — was taking place alongside a campaign by other senators and economist Larry Summers to convince Manchin of the merits of the bill.

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AROUND THE WORLD

DIRTY POOL — After Mario Draghi’s coalition government collapsed, plunging Italy into fresh turmoil, an unsettling question is hanging in the air: was the Kremlin involved ?

Two incidents involving contact between right-wing party chiefs and Russian diplomats have triggered a round of finger-pointing in Rome as the election campaign gets into gear, writes Hannah Roberts .

In the first incident in May, a Russian embassy official asked a foreign affairs adviser to Matteo Salvini — Meloni’s ally in the far-right League party — if he intended to pull his ministers out of Draghi’s coalition, according to La Stampa newspaper on Thursday, which cited intelligence reports. The second incident centers on Silvio Berlusconi, Italy’s former PM and a long-time ally of Putin’s. Berlusconi, who leads the center-right Forza Italia party, spoke to the Russian ambassador on the day that he withdrew his backing for Draghi’s government, according to reports in la Repubblica today.

At stake is Italy’s international reputation and the question of whether Rome will remain a solid and dependable part of the Western alliance against Vladimir Putin’s aggression in Ukraine.

NIGHTLY NUMBER

$14 billion

The amount of money the government can net from closing the carried interest loophole , which allows private equity companies to have a large portion of their performance profits taxed at a lower capital gains rate than regular income. This initiative — part of the deal between Sens. Chuck Schumer and Joe Manchin — is drawing the ire of private equity firms, who are making a push to convince Sen. Kyrsten Sinema to bat down the provision.

PARTING WORDS

Pennsylvania Senate candidate Mehmet Oz greets supporters. | Stephanie Keith/Getty Images

CHECK UP — The GOP establishment is feeling down on Dr. Oz, write Holly Otterbein and Natalie Allison .

The Senate Republicans’ campaign arm is privately sounding the alarm about Oz’s bid for the Senate in the critical battleground of Pennsylvania , while telling donors that the party still has a path to winning the majority without the state.

On a donor call last week that focused on Senate races throughout the country, National Republican Senatorial Committee officials discussed Oz’s poor performance in polls, including his high unfavorability ratings, said a person on the call.

“It was an alarm bell,” the person said, adding that Oz’s poor image among voters is “really freaking everybody out.”

Senate Republicans’ easiest path to recapturing the Senate is through keeping retiring Sen. Pat Toomey’s seat in their column. But if brass at the NRSC determines that Oz is a lost cause, they can aim for pickups in other states including Georgia, Nevada, New Hampshire and Arizona. In addition to the Pennsylvania race, Republicans are defending hotly contested seats in Wisconsin and North Carolina.