Monday, Aug 29, 2022 • 29min
Is a Local Prosecutor Making the Strongest Case Against Trump?
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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.
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Richard Fausset
Michael Barbaro
Fani Willis
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Transcript
Verified
Break
Michael Barbaro
00:20
I'm
Michael Barbaro
. This is The Daily
.Share
00:29
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. My colleague Richard Fausset on the case being made by a local prosecutor in Georgia
. It's Monday August 29.Share
01:02
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.Share
Richard Fausset
01:45
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.Share
Michael Barbaro
01:57
Right.
Share
Richard Fausset
01:57
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 that big broad scope of what appears to be a very ambitious investigation.
Share
Michael Barbaro
02:25
Well, tell us about that. What is the story behind this investigation?
Share
Richard Fausset
02:30
Well, at the heart of this investigation is the local prosecutor here in
Atlanta
.Share
Fani Willis
02:34
This office is about the people of
Fulton County
and the people of Fulton County
deserve the very best.Share
Richard Fausset
02:40
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.Share
Fani Willis
02:53
I'm going to be the first woman District attorney of
Fulton County
and I'm gonna make this community proud. I'm gonna make this community safer.Share
Richard Fausset
03:02
She ran on a platform that was kind of a mix of criminal justice reform and also being tough on crime.
Share
Fani Willis
03:11
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. If you...
Share
Richard Fausset
03:23
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 are some real excesses in the criminal justice system.
Share
Fani Willis
03:32
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 my soul.
Share
Richard Fausset
03:43
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.
Share
04:02
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.Share
04:23
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 Fani Willis's
judicial district right.Share
Michael Barbaro
04:38
It was basically the scene of the alleged crime.
Share
Richard Fausset
04:41
Yeah, exactly. It was the scene of the alleged crime.
Share
Michael Barbaro
04:44
So once this lands in her lap, what became her legal strategy.
Share
Richard Fausset
04:50
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.Share
05:15
We have
Senator Lindsey Graham
, we have former mayor Rudy Giuliani
who was 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.Share
05:45
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
Fani 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
.Share
Michael Barbaro
06:11
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.
Share
Richard Fausset
06:27
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.Share
06:54
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 the gas can with him and 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.Share
07:30
So with
RICO
, you sort of established this idea of a criminal enterprise and you say, OK, 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 enterprises' criminal goal.Share
07:53
And so in the case of the mafia that's pretty obvious right to make money by running all kinds of rackets, you know, like the numbers, game prostitution, etcetera in this case. If
Fani Willis
really is putting together a RICO
case based on the State RICO
law, which is very similar to the federal RICO
law.Share
08:10
The idea ostensibly is that the criminal enterprise in this case is the
Trump
campaign itself.Share
Michael Barbaro
08:19
So the idea behind racketeering behind
RICO
is that there's some kind of 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.Share
Richard Fausset
08:39
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.Share
Michael Barbaro
09:13
We'll be right back.
Share
Break
Michael Barbaro
10:51
So how is District Attorney Willis actually building this case? This theoretical racketeering case so far based on her actions and your reporting?
Share
Richard Fausset
11:00
So no, I think theoretical is is a really good way to talk about this right now because we really don't know where prosecutors are gonna 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.
Share
11:25
The atlantic journal Constitution Reports that
Trump
called Georgia
governor Brian Kemp
this morning.Share
Richard Fausset
11:31
This includes calls made by
President Trump
to a number of Georgia
officials including Georgia's
governor, Brian Kemp
, a fellow Republican.Share
11:40
Trump
, asked for the Governor's help to overturn Georgia's
election win for Biden
.Share
Richard Fausset
11:45
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.
Share
11:56
Mr President, everybody is on the line, and just...
Share
Richard Fausset
11:59
This is a recorded phone calls that's now becomes somewhat infamous.
Share
Donald Trump
12:02
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...
Share
Richard Fausset
12:17
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 when it for himself".Share
Donald Trump
12:31
So what are we going to do? I only need 11,000 votes. I need 11,000 votes, give me a break.
Share
Michael Barbaro
12:43
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.Share
Richard Fausset
12:55
So I'm not a lawyer, but the people we've talked to, you have pointed out that there are laws on 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.Share
13:25
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
.Share
Michael Barbaro
13:44
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.Share
Richard Fausset
13:59
I mean, that's 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 and work out some kind of resolution to an unresolved issue.Share
14:27
And that's, you know, that's the kind of thing that people do with their lawyers on the line all the time, at least powerful people.
Share
Michael Barbaro
14:33
Right? Just discussing possibilities.
Share
Richard Fausset
14:35
Sure. Talking.
Share
Michael Barbaro
14:37
Got it. So what's the second potential pursuit by the D. A. in this theoretical racketeering case?
Share
Richard Fausset
14:46
Sure. So there's a second kind of bucket.
Share
14:48
We will begin with the first witness and we have with us today and that involves mayor
Rudy Giuliani
.Share
Richard Fausset
14:56
A number of misstatements that
Rudy Giuliani
chairman 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.Share
15:14
This is our 4th or 5th hearing.
Share
Michael Barbaro
15:16
So basically during testimony.
Share
Richard Fausset
15:18
Yeah. These were very dramatic moments.
Share
15:20
This is a terrible, terrible constitutional crisis we're in.
Share
Richard Fausset
15:24
Mr.
Giuliani
made claims of nefarious intent.Share
15:27
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.
Share
Richard Fausset
15:35
There was an allegation that voting machines...
Share
15:38
This is not a machine you want counting your votes.
Share
Richard Fausset
15:40
... it altered the outcome of the election.
Share
15:42
But it does cast doubt on the entire legitimacy of the of the vote.
Share
Richard Fausset
15:49
And he made a case that there were a couple of African American elections workers on a tape.
Share
Rudolph Giuliani
15:56
How can they say there's no fraud? Look at that woman! What could have taken those ballots out? Look at them starting around with the ballots. Nobody in the roomm hiding around.
Share
Richard Fausset
16:04
That were seen to be passing around some kind of USB ports or hard drive or something.
Share
Rudolph Giuliani
16:10
Quite obviously Surreptitiously passing around USB ports as if their vials of heroin or cocaine. I mean it's out it's obvious to anyone who is a criminal investigator or prosecutor, they are engaged in surreptitious illegal activity, again...
Share
Richard Fausset
16:26
None of which proved to be true.
Share
Rudolph Giuliani
16:29
If you don't stop it the first time you catch it, this is when you go down, this is when you go down.
Share
Michael Barbaro
16:39
So put those false statements into the context of a racketeering case.
Share
Richard Fausset
16:44
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.Share
Michael Barbaro
17:13
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.Share
Richard Fausset
17:31
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 went down there and I was representing my client and I was making a case on my client's behalf". "You know, these are the kinds of things that lawyers do for their clients".Share
17:53
And you know, I'm not really in a position to tell you whether or not that gets him off the hook or puts them on the hook. But I think that's gonna be a big part of any defense that
Mr Giuliani
and others like him are gonna mount.Share
Michael Barbaro
18:05
Right okay, what's the third area that the district attorney is pursuing?
Share
Richard Fausset
18:10
So the third area has to do with the fake electors 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.
Share
18:41
This is
CNN
breaking news.Share
Richard Fausset
18:44
So in
Georgia
you have this very close fought election.Share
Jake Tapper
18:47
CNN
has now projected that president-elect Joe Biden
will win the State of Georgia
.Share
Richard Fausset
18:52
It's won narrowly by
Joe Biden
.Share
18:56
Georgia's
Republican secretary of State
said Thursday Joe Biden
clearly beat Donald Trump
to win Georgia's
16 Electoral college votes.Share
Richard Fausset
19:05
And on the same day that the legitimate electors for
Joe Biden
assembled at the Georgia
State Capitol
.Share
19:12
I will start by stating that I cast my vote for president,
Joe Biden
.Share
Richard Fausset
19:18
You had this alternate meeting to put forth alternate electors who supported
Donald Trump
.Share
19:25
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.Share
Richard Fausset
19:38
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
.Share
19:48
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 declared Joe Biden
not the president of United States but actually declared Donald Trump
for a second term.Share
Richard Fausset
20:14
So that was the plan. 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.Share
20:35
Bert jones who is now the nominee for his party and the lieutenant governor's race here in
Georgia
. Fani Willis
has identified all of those fake electors as targets for investigation, meaning they could potentially face indictment at some juncture.Share
Michael Barbaro
20:51
Fascinating. Okay, so when we think about the three strand, you just talked about based on everything you've said about the potential for a racketeering case. It seems the district attorney is gonna attempt to make the case that they're all connected, but they're not scattershot, they're not separate. They should be seen as an effort to further this, she would say a legal goal of trying to overturn the election. There are three legs of the same stool. So what happens now?
Share
Richard Fausset
21:16
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, Fani Willis
is a prosecutor in a big city.Share
21:42
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 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.Share
22:07
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 have been called in have been subpoenaed to give testimony.Share
22:31
It's gonna 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 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.Share
22:53
Perhaps this 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.
Share
Michael Barbaro
23:11
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.Share
Richard Fausset
23:31
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.Share
Michael Barbaro
23:53
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 this effort to overturn the election. And I ask that because many legal experts have told us that it's going to be very challenging for
the
Department Of Justice
, for example, to bring charges against Trump
for 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.Share
24:22
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
?Share
Richard Fausset
24:45
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 being 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.Share
25:10
And a number of experts have looked at some of the potential crimes that some of these people could face?
Share
25:15
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.
Share
Michael Barbaro
25:33
It's interesting to 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.Share
Richard Fausset
25:46
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 Fani Willis, the district attorney in Fulton County,
doesn't have to deal with those things.Share
26:15
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.Share
Michael Barbaro
26:31
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 describe the laws might stand a better chance of succeeding than perhaps a federal investigation.
Share
Richard Fausset
26:54
Yeah. And I think that that sense of a more uncomplicated mission is one that
Fani Willis
has really embraced in her rhetoric on this case. And it kind of gets back to the previous thing she said.Share
27:05
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.Share
27:29
And if it comes to pass that this local prosecutor is the person who ends up indicting
President Trump
or brings up 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 higher plane than local law. But local laws matter.Share
27:56
Local law is very explicit on questions like solicitation to commit
election fraud
in the State of
Georgia
. They're buried in a, you know, 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
.Share
Michael Barbaro
28:21
Well, Richard, thank you very much. We appreciate it.
Share
Richard Fausset
28:25
Nice talking to you. Thanks.
Share
Michael Barbaro
28:32
Since we spoke with Richard The Times reported that Fani Willis maybe broadening her investigation to include activities that took place outside of
Fulton County
, including an attempt by allies of President Trump
to improperly obtained data from a voting system in rural Georgia
.Share
28:52
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.Share
29:12
We'll be right back.
Share
Break
Michael Barbaro
29:49
Over the weekend, both
Russia
and Ukraine
accused each other of firing rockets at a nuclear power plant. In Ukraine
raising 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.Share
30:17
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.
Share
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Michael Barbaro
Richard Fausset
Fani Willis
Donald Trump
Rudolph Giuliani
Jake Tapper