Georgia Today: Behind Fani Willis' investigation into Trump's election meddling

As Fulton County District Attorney Fani Willis continues her investigation into former President Donald Trump’s attempted interference in the 2020 election, she’s been authorized to empanel a special grand jury. The Georgia Today podcast looks at the latest with Willis’ investigation and what to expect over the coming year.

RELATED: Fulton DA details next stage of Trump probe

TRANSCRIPT

[News tape] Fani Willis, The Rachel Maddow Show: "What I know about investigations is, they're kind of like peeling back an onion. And as you go through each layer you learn different things. To be a responsible prosecutor you must look at all of those things in an investigation to be fair to everyone involved. I made a commitment to the citizens of this county: We were going to investigate these crimes."

Steve Fennessy: It's been almost exactly a year since Fani Willis announced her investigation into Donald Trump's attempted meddling in Georgia's 2020 election results. Now, Willis has been authorized to empanel a special grand jury.

[News tape] CNBC: She's the Fulton County DA who's conducting that criminal probe of possible election interference by Mr. Trump and his associates as they tried to overturn his election loss in 2020.

Steve Fennessy: The grand jury allows her to subpoena witnesses and could ultimately lead to criminal charges against the former president. But what in the world is a local district attorney doing investigating a former president? This is Georgia Today. I'm Steve Fennessy, and I'm joined by Atlanta Journal-Constitution reporter Tamar Hallerman. Hi, Tamar.

Tamar Hallerman, Senior Reporter, Atlanta Journal-Constitution: Thanks for having me, Steve.

Steve Fennessy: Thanks for being here. So, for our listeners who don't live in Fulton County or might not be familiar with her, tell us a bit about Fani Willis, who's just barely a year now into her first term as DA.

Tamar Hallerman: She was elected in 2020. She actually ended up defeating her former boss, Paul Howard. She had worked as a prosecutor in the Fulton DA's office for almost 20 years. He was long seen as a controversial figure. Many prosecutors had left the Fulton DA's office to go work in other DA's offices in the region. There were issues of sexual harassment, or alleged sexual harassment, in the office and he also got in trouble for not disclosing that he was leading nonprofit groups that ended up getting some government grants. So he was certainly a wounded figure. And she actually wasn't challenged by a Republican. So she cruised into office in early 2021.

Steve Fennessy: Her history is really unique. She is the daughter of a Black Panther, right?

Tamar Hallerman: A former Black Panther, yes — and a lawyer who ended up bringing her to the courtroom very often. And she kind of talked about, you know, that legal bug kind of settling in very early. And she became really famous. She led the prosecution of former Atlanta Public School teachers and administrators who got caught up in the cheating scandal.

[News tape] WSB: That Atlanta Public Schools cheating scandal. It's been 10 years since the GBI charged a group of educators, 11 educators convicted.

Tamar Hallerman: And what was very interesting is she used a very unique statute in Georgia to successfully go after many of these teachers and administrators: these racketeering laws that that had been set up in the '80s to go after mobsters. She really proved that she was creative and she really won a lot of respect for the work that she did. There were also plenty of people who said she went way too hard after these teachers and administrators who were just trying to do good work and teach kids.

Steve Fennessy: So when she beat Paul Howard, I mean, it's hard to overstate the significance of that. Paul Howard, he was an institution. I think he was running for his seventh term or something. And then, during that transition phase, I understand he didn't even talk to her.

Tamar Hallerman: Yeah, exactly. And I think a lot of staffers were just on edge. Many people had left the office over the, kind of, preceding years and there was this giant backlog of cases that — that had been kind of piling up. You know, Fani Willis believes a lot of it was due to mismanagement from Paul Howard. A lot of it was also due to the COVID backlog. A lot of courts weren't meeting. There weren't grand juries meeting and handing out, you know, subpoenas and indictments and that sort of thing.

Steve Fennessy: And then on Jan. 2, Donald Trump, who has lost the election to President Joe Biden but is still in office, calls Georgia Secretary of State Brad Raffensperger and famously says.

Donald Trump: "So, look. All I want to do is this. I just want to find 11,780 votes."

Steve Fennessy: One more vote than Biden's margin of victory here. And right after she took over the DA's office that she announced an investigation into Donald Trump's attempts to change the election results. Help me understand how is that the purview of a local DA and not, say, some federal or state agency?

Tamar Hallerman: Well, she would argue, first of all, all of the offices of state government are located in Fulton County. So of course, the state capital, the offices of the secretary of state, the attorney general, you know, all the other offices with jurisdiction over this issue had potential conflicts. So, of course, Secretary of State Brad Raffensperger was called by Donald Trump. He was called by Sen. Lindsey Graham from South Carolina, which is another issue that Fani Willis is looking into. Of course, there's Attorney General Chris Carr, who also received a phone call from Donald Trump, as did Gov. [Brian] Kemp. So there were many offices that that could have had jurisdiction to to look into this issue, but who could be potential witnesses in this case. So in her eyes, DA Willis thinks she's the only one who's kind of untouched by this and the only person who can really look at this objectively.

Steve Fennessy: What is it about those calls that were made to various state officials that rises to the potential level of criminality?

Tamar Hallerman: When she announced this investigation in February 2021, she did this in a series of letters that she sent to Gov. Kemp, Lt. Gov. Geoff Duncan and Attorney General Chris Carr, Secretary of State [Brad] Raffensperger. She's asking them to preserve documents related to this case, but she also kind of lays out the state laws that she thinks could have been broken here. She mentions solicitation to commit election fraud, false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office, and any involvement in threats related to administration of Georgia's elections. And from that, we've kind of been able to infer some of the events that she might be looking at. You know, there's also testimony that Trump's lawyer, Rudy Giuliani, gave to Georgia senators after the election, where he was kind of urging them to take really extraordinary action when it came to certifying the election results. Since then, we've also learned that she might be looking into the resignation of BJay Pak, the former U.S. attorney for Atlanta and northern Georgia, who seems to have resigned under pressure from President Trump.

Steve Fennessy: He also received a call from the White House and his resignation came almost immediately after that call.

[News tape] 11Alive: BJay Pak resigned as U.S. attorney after President Trump called him a, quote, "Never Trumper." In his resignation letter, Pak cited, quote, "unforeseen circumstances."

Tamar Hallerman: And so those are at least five or six different things that she may be looking into.

Steve Fennessy: Amid all of these potential crimes that you just listed, I want to focus specifically for a minute on on racketeering because I think that a lot of people, including me, don't really understand what's involved there. But when we're talking about something that isn't, you know, quote unquote, "organized crime," what do we mean when we say "racketeering?"

Tamar Hallerman: Sure. We're talking about multiple individuals who were kind of acting toward a single goal. It might have been to protect an enterprise, which in the case of the Mafia is, you know, whatever kind of gang that you were a part of. But it could also be used to protect an enterprise like the presidency or a candidate. But in Georgia, it's also been used successfully to go after street gangs, an assisted suicide network, an ex-DeKalb sheriff for killing his political rival. So there are kind of ways to you that where you can kind of string together multiple crimes that might have been committed to protect an institution. And even if kind of the head person didn't commit the crimes directly, if they can all be linked to show that there were people who committed those crimes on that person's behalf, that kind of figurehead can still be implicated in all of this. And kind of an interesting footnote to all of this, you know, is back in the '70s and '80s when these RICO laws were were first introduced at the federal level, one of the first prosecutors to really use it successfully was Rudy Giuliani, who at the time was a prosecutor up in New York, and he used it successfully to go after the heads of the five crime families [also known as The Commission].

[News tape] CNBC: There was something on the books called the RICO statute. Under the RICO umbrella, you could convict a whole family infrastructure of conspiring together as an organized crime family. And so Rudy's idea was why don't we do that against The Commission, as if it is a distinct enterprise and conspiracy that we can prosecute under the racketeering law?

Tamar Hallerman: Now he could be involved in this as as DA Willis looks after, you know, his false testimony that he gave before the Georgia Senate Committee on the Judiciary.

Steve Fennessy: Somewhere John Gotti is smiling. So what has Fani Willis' investigation consisted of over the past year?

Tamar Hallerman: She and her office have been very quiet after kind of an initial round of media where she announced that she was looking into this stuff. So we know that she's talked to at least four current and former employees of the Secretary of State. You know, we know that she's hired the state's top expert on racketeering laws: a lawyer named John Floyd. We know that her prosecutors are cooperating with their counterparts in New York, as well as the Jan. 6 commission that in  Washington, D.C., which is looking at Trump's actions in the lead-up, during and right after the Jan. 6 insurrection. So there's certainly some information sharing as well. So we know that Secretary of State Raffensperger has requested a subpoena if he's going to talk to her so that was one of the reasons why she ended up requesting a special grand jury in this case.

Steve Fennessy: Here's Fulton County DA Fani Willis.

Fani Willis: "Simply putting them on notice that they could expect to receive subpoenas and that I would just ask that they, as also members of the law enforcement community, inform and educate their staff to not destroy anything, to make sure that things were preserved because we would be coming to ask for them and to make sure that those people that we needed to talk to as witnesses would be forthcoming, as we suspected none of them as being the target of an investigation but just people that we needed to be truthful and forthcoming while we investigated this matter."

Steve Fennessy: If former President Trump ends up facing criminal charges — and that's a big if — legal analysts say it'll be far from an open and shut case. That's next. This is Georgia Today.

[BREAK]

Steve Fennessy: Welcome back to Georgia Today; I'm Steve Fennessy. I'm speaking with Tamar Hallerman, a reporter at the Atlanta Journal-Constitution. So we've used this phrase "special grand jury," which is distinct from, I guess, a regular grand jury. What's the difference, exactly?

Tamar Hallerman: There are a couple. The main two are time and focus. So Fulton County, at any given moment, has two grand juries that are running concurrently, and they are looking at pretty much every type of felony under the sun. You know, they're hearing murder cases, kidnapping, and they might be hearing dozens on any given day that they're meeting.

Steve Fennessy: And, of course, the grand jury hears evidence from the prosecutor, and if there's substantial and sufficient evidence, they're the ones to issue an indictment against a defendant.

Tamar Hallerman: And subpoenas as well. And so they're hearing a bajillion issues, and they're also rotated off after two months. And so you have a new group of jurors who start every two months. A special grand jury is different in that they meet longer than two months. In the case of this special grand jury, that Fani Willis was granted, they're going to meet for a year. And they're also going to be singularly focused on this Trump case, which a lot of the attorneys I've been talking to outside of the DA's office have mentioned. This is advantageous because, first of all, this case is just so complicated and it's so novel. You know, there's never been a former president who has been put on trial or kind of, you know, legally vulnerable for committing alleged crimes. So. So there's a lot of novel issues at stake here. And also just knowing the history of former President Trump in the courtroom. He's notoriously litigious, of course, and, should this case end up advancing, we're expecting his lawyers to fight this at every single stage, so this could drag out for months, more than a year. And so I think it could be advantageous to have one set of jurors who really kind of dive into this specific issue.

Steve Fennessy: OK, so they'll be focusing on this and this alone, but they can't, as a special grand jury, issue indictments, correct?

Tamar Hallerman: Exactly. They can issue subpoenas. They have some investigative powers, but they cannot issue indictments. And what's going to happen is at the end of their term, whenever that may be, they're going to issue a report to the judge, the Fulton County judge overseeing them, recommending a course of action. So if prosecutors ultimately do want to seek an indictment, they'll have to go back to one of those two concurrent regular grand juries to seek that out.

Steve Fennessy: So what do legal experts have to say about Donald Trump's potential legal exposure here?

Tamar Hallerman: It really depends on who you talk to. I talked to some lawyers who think that former President Trump is at substantial legal risk, especially when it comes to charges like solicitation of election fraud. You know, they just say that it's so open and shut; when you listen to this tape with the president and Secretary of State Raffensperger, they believe it's very straightforward. There are others who say, especially when you start bringing in the racketeering laws, it just gets so complicated and tough to prove. And many criminal defense attorneys I talked to think that Trump has a very good legal defense should his lawyers say, "Look, you know, he believed in his heart of hearts, that there was fraud and he wasn't asking Secretary of State Raffensperger to create ballots out of thin air. He was asking him to find fraudulent ballots that already exist." And it really depends on the jury that's ultimately seated there, whether they buy that or not.

Steve Fennessy: Fani Willis:

Fani Willis: "Is the state of mind of the individual important? And, absolutely. When any prosecutor throughout this country is interviewing people and trying to determine if a crime was committed and if they understood what they are doing. And so you look at facts to see, did they really have intent? Did they understand what they were doing?"

Steve Fennessy: And this being Fulton County, which went something like 3 out of 4 voters went for Joe Biden, right?

Tamar Hallerman: You know, and it is one of the bluest counties in Georgia. But at the same time, that still leaves potentially a quarter of jurors who might not be convinced. And you know, these jurors have to act unanimously. There are some fans of the former president who believe that he did absolutely nothing wrong, who might not be able to be convinced. And there might be an issue like what we saw with the Ahmaud Arbery case down in Brunswick, where, you know, selecting jurors was so complicated because it was almost impossible to find people who didn't have very deep opinions about what happened, who — who weren't closely tracking this case from the get go.

Steve Fennessy: Donald Trump had something to say about all of this and his appearance in Texas a few days ago.

[News tape] 11Alive: The former president spoke at a rally in Texas Saturday and talked about investigations targeting him in Washington, New York and Atlanta.

[News tape] Donald Trump: "If these radical, vicious, racist prosecutors do anything wrong or illegal I hope we are going to have in this country the biggest protest we have ever had in Washington, D.C., in New York, in Atlanta and elsewhere."

Tamar Hallerman: You know, he mentioned how they're "dishonest." And it really represented a ratcheting up of rhetoric from the former president. But he has been a little more reticent to go after these prosecutors looking into his actions, especially in Atlanta. He really hasn't talked about it much. So that was interesting. He didn't mention Fani Willis by name, but he also did call for mass protests in Washington, in New York, in Atlanta. You know, if if something goes wrong, is he sort of described it and you know that that prompted enough concern from the DA here in Fulton County that she ended up requesting security assistance from the FBI.

Steve Fennessy: Security assistance from the FBI. What what does that mean, exactly?

Tamar Hallerman: Well, it sounds like she's worried about another insurrection a la Jan. 6. So she mentions the courthouse in Fulton in downtown Atlanta being kind of at the center of the city. Of course, it's near City Hall. It's near the Georgia state Capitol. It's near federal courthouses. It's near Georgia State University and how it's sort of a target-rich environment and how the buildings needed to be secured, basically in case there were mass protests.

[News tape] CNBC: Fani Willis, the DA, asking the FBI to do a risk assessment of the county courthouse in Fulton County, where her office is located, and to provide protective resources, including intelligence and federal agents, after that rally.

Tamar Hallerman: This has to be a consideration for her as she's deciding whether to move forward ultimately with charges against the former president should this go to trial, of course. This would create a media circus. Blocks of downtown would need to be shut down. There would be protesters, counterprotesters, Secret Service. It would be nothing less than a zoo, and somebody's going to have to pay for all of that. Will it be Fulton County taxpayers? So that has to be a consideration that that she must be thinking about.

Steve Fennessy: A lot of things have to happen before we would even reach that point. But — but it's also important, I think, to talk about Donald Trump. It's expected most people seem to assume that he is going to run again in 2024. So let's say that there are there is an indictment against him that comes down, I don't know, in the next year or so, which is still long before the 2024 elections. Can you run for president if you're indicted on something like, you know, meddling in an election?

Tamar Hallerman: Well, it certainly might help him when it comes to kind of riling up his followers. This very much kind of plays into it. So it could certainly be fuel for him should he decide to run. It's also worth noting, of course, that, of course, that Fani Willis' term is also up in 2024. So should she want to run again? That's also something that she needs to be mindful of.

Steve Fennessy: What has Brian Kemp or Brad Raffensperger or Chris Carr said about Fani Willis' investigation into Donald Trump?

Tamar Hallerman: Brian Kemp and Chris Carr have been very quiet about it. But Brad Raffensperger has been more interesting. He said that he wants to see a subpoena before he's willing to go in and talk to investigators. He actually said that publicly.

[News tape] Brad Raffensperger, Meet The Press: "We've fully complied, sent all the documents that we had, and she actually talked to some of our staff members. So if she wants to interview me, there's a process for that and I will gladly participate in that because I want to make sure that I follow the law, follow the Constitution. And when you get a grand jury summons, you respond to it."

Tamar Hallerman: In his eyes, his office has been extremely cooperative with prosecutors and handed over information willingly, and he feels like she's been extremely political and kind of unfair, fairly kind of dragging his office into the mud, especially when she did go and request a special grand jury because she did call out Raffensperger by name for not being willing to come in without a subpoena.

[News tape] Fani Willis, The Rachel Maddow Show: "And so I can write a nice letter to someone and say, Hey, will you please give me this? But if they don't give it to me, there's no legal consequence. So the way to formally ask for an indictment that is compelling,as opposed to just a lovely request, is to issue a subpoena."

Tamar Hallerman: And I think a lot of people are quick to dismiss her as yet another Democrat kind of going after former President Trump, but she's not known as like some liberal part of the resistance. There still seems to be very much universal respect. She's known as a very hard worker and just being very quick on her feet and being able to kind of, you know, grasp new concepts really fast. So that's something to absolutely keep in mind.

[News tape] Fani Willis, The Rachel Maddow Show: "I've been in this business now for 25 years. Nineteen of those years have been spent as a prosecutor. What I know about investigations is they're kind of like peeling back an onion. And as you go through each layer, you learn different things. To be a responsible prosecutor, you must look at all of those things in an  investigation to be fair to everyone involved."

Steve Fennessy: I understand from one of your stories that she's considers herself more conservative than her own father.

Tamar Hallerman: Yeah, you know, her father was a former Black Panther, as we mentioned. But yes, considers herself definitely kind of more of a law-and-order type. At the same time, she's — she's very ambitious as — as is kind of clear from her approach. You know, I'm sure there are plenty of prosecutors who would love to kind of have that feather in their cap that they successfully prosecuted a former president. And she said she's giving her prosecutors lots of freedom to kind of follow the facts wherever they may lead them. So she insists that this process is not political. But of course, no matter what she does, you know she's going to disappoint somebody, whether that's fans of the former president who believe he's getting the short end of the stick, or whether it's progressives who absolutely hate the former president who feel like, you know, the DA's office should absolutely go after the president with everything they've got.

Steve Fennessy: Fulton County prosecutors will impanel the special grand jury by May. Between 16 and 23 jurors will hear evidence and subpoena witnesses for up to a year. And under the law, the jurors' identities will remain secret. Georgia Today is a production of Georgia Public Broadcasting. Jess Mador is our producer. Our engineers are Jesse Nighswonger and Jake Cook. You can keep up with Georgia Today by subscribing to the show at GPB.org or anywhere you get podcasts. Thanks for listening. We'll see you next week.