A few weeks after losing the 2020 election, President Donald J. Trump called Ronna McDaniel, the head of the Republican National Committee, with a plan for keeping himself in office. During the call, he asked John C. Eastman, an architect of the strategy, to lay it out: Trump supporters in states that the president had lost would act as if they were official Electoral College delegates, an audacious scheme to circumvent voters.
After the plan was put in motion, Ms. McDaniel forwarded an “elector recap” report to Mr. Trump’s executive assistant, who replied soon after, “It’s in front of him!”
Such details, from the report released in December by the House committee that investigated the Jan. 6 attack on the Capitol, offer fresh evidence that Mr. Trump was not on the periphery of the effort to overturn the election results in Georgia but at the center of it.
For the last two years, prosecutors in Atlanta have been conducting a criminal investigation into whether the Trump team interfered in the presidential election in Georgia, which Mr. Trump narrowly lost to President Biden. With the wide-ranging inquiry now entering the indictment phase, the central question is whether Mr. Trump himself will face criminal charges.
Legal analysts who have followed the case say there are two areas of considerable risk for Mr. Trump. The first are the calls that he made to state officials, including one to Brad Raffensperger, the Georgia secretary of state, in which Mr. Trump said he needed to “find” 11,780 votes. But the recently released Jan. 6 committee transcripts shed new light on the other area of potential legal jeopardy for the former president: his direct involvement in recruiting a slate of bogus presidential electors in the weeks after the 2020 election.
The Atlanta prosecutors have moved more quickly than the Department of Justice, where a special counsel, Jack Smith, was recently appointed to oversee Trump-related investigations. This month, the Fulton County Superior Court disbanded a special grand jury after it produced an investigative report on the case, concluding months of private testimony from dozens of Trump allies, state officials and other witnesses.
The report remains secret, although a hearing is scheduled for Tuesday to determine if any or all of it will be made public. Nearly 20 people known to have been named targets of the investigation could face charges, including Rudolph W. Giuliani, Mr. Trump’s former personal lawyer, and David Shafer, the head of the Georgia Republican Party.
Fani T. Willis, the district attorney of Fulton County, which encompasses most of Atlanta, will need to make her case to a regular grand jury if she seeks indictments, which would likely come by May. That means the nation could be in for months more waiting and speculating, particularly if a judge decides after this week’s hearing not to make public the report’s recommendations.
The springboard for the investigation was the now-famous call by Mr. Trump on Jan. 2, 2021, during which he pressured Mr. Raffensperger, a fellow Republican. “I just want to find 11,780 votes, which is one more than we have,” Mr. Trump said during the call, which was recorded by Mr. Raffensperger’s office.
Understand Georgia’s Investigation of Election Interference
Mr. Trump had already been undermining the election results for weeks. “Everyone knows that we won the state,” he said on Twitter on Nov. 13.
By Nov. 20, Gov. Brian Kemp, a Republican, said he was legally required to certify Georgia’s election results, sealing Mr. Biden’s win. “The Governor of Georgia, and Secretary of State, refuse to let us look at signatures which would expose hundreds of thousands of illegal ballots,” Mr. Trump said on Twitter that day.
Mr. Giuliani then traveled to Georgia to conduct a hearing in the State Senate, where he raised alarms about corrupted voting machines and garbage cans stuffed with Biden ballots — claims seen as dubious even within the Trump campaign.
Josh Findlay, a Trump campaign lawyer, told the committee that there were “justifiable complaints about election administration,” but that “the big complaints that you would hear about, you know, massive vote flips and things like that, we just didn’t ever — at least in Georgia, we did not ever find any evidence of that.”
By Dec. 7, Georgia election officials recertified Mr. Biden’s victory. Around the same time, Mr. Findlay was told to examine the possibility of creating alternate electors in states like Georgia.
“It was my understanding that the president made this decision,” he testified to the Jan. 6 committee.
A few days later, Mr. Trump called Ms. McDaniel, setting the party apparatus in motion. A scramble began to enlist fake electors.
They met in secret in Georgia’s capital. They signed documents that claimed they were the “duly elected and qualified electors,” even though they were not.
Robert Sinners, the Trump campaign’s local director of Election Day operations, had grave misgivings, describing the proliferating claims about errant voting machines and other purported frauds as “just complete hot garbage” in his testimony to the Jan. 6 committee.
Mr. Trump also interceded more directly. On Dec. 5, he phoned Mr. Kemp and urged him to allow state lawmakers to award the state’s electoral votes. The governor declined. Later that month, the president called Frances Watson, the lead elections investigator in Mr. Raffensperger’s office, in a rambling conversation in which he talked about “dropped ballots” and the need for a “signature check.” (Ms. Watson said she was “shocked that you would take time” to call.)
Mr. Trump’s interventions culminated in the Jan. 2 call to Mr. Raffensperger. “You know what they did and you’re not reporting it,” the president told him. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you.”
Ms. Willis began investigating soon afterward. “Anything that is relevant to attempts to interfere with the Georgia election will be subject to review,” she said in an interview in February 2021, during which she floated the possibility of bringing charges under Georgia’s version of the federal Racketeering Influenced and Corrupt Organizations Act.
Legal experts see a number of potential criminal charges; even Mr. Trump’s comments to Mr. Raffensperger could be construed as violating a state law against influencing or intimidating individuals involved in a nonjudicial government proceeding, like the certification of election. That is one of the arguments made by a bipartisan Brookings Institution panel that has exhaustively studied the Georgia investigation.
“We collectively thought that there’s a substantial likelihood of some very serious charges,” said Gwendolyn Keyes Fleming, a co-author of a Brookings report and a former district attorney in DeKalb County, which includes part of Atlanta.
Among the Brookings findings: Mr. Trump’s call to Mr. Raffensperger could open him up to first-degree criminal solicitation to commit election fraud, a felony, as could his call to Ms. Watson. By setting up the electors scheme, Mr. Trump could be accused of soliciting others to engage in what amounted to illegal “tampering” with the legitimate electors list, as defined under Georgia law, and by soliciting the “counterfeiting” of the state’s electoral ballots.
The Brookings panel also found that Mr. Trump may have violated a general criminal solicitation statute and a law that specifically prohibits interfering with primaries and elections. He could be accused of illegally conspiring with Mr. Giuliani, Mr. Eastman and others to commit election fraud through the false elector scheme. (Greg Jacob, who was chief counsel for Vice President Mike Pence, told the Jan. 6 committee that Mr. Eastman admitted in front of Mr. Trump that his plan to have Mr. Pence obstruct the electoral certification violated the law.).
Still, some lawyers foresee obstacles.
Byung J. Pak, the former United States attorney for the Northern District of Georgia — a Republican who was forced out by Mr. Trump — said that Mr. Trump’s language during his call with Mr. Raffensperger left room for interpretation.
“He doesn’t say anything like, ‘Flip the votes,’ or ‘Do this or that,’” Mr. Pak said. “It could be like, ‘Go audit.’ It could be interpreted in a noncriminal way, right? And so I think that theory is probably going to be pretty weak.”
One of the biggest questions is whether Ms. Willis will bring charges of racketeering, which she has used aggressively before and which are used to combat organized crime and other “enterprises” engaged in criminal conduct.
“The benefit to a prosecutor is that in the trial of a defendant you can talk about criminal acts, for instance, that the defendant may not have committed, but that he may be responsible for under a RICO charge,” said Michael J. Moore, a former federal prosecutor.
A number of lawyers also believe that Mr. Trump would be able to raise reasonable doubts about whether he broke Georgia law for helping to direct the fake elector scheme. Mr. Trump’s lawyers are likely to argue that the electors were convened merely so that he could preserve his options in case he succeeded in his legal challenges, which he did not.
No prosecution of a former president would be simple. There are only a handful of vaguely analogous precedents: Ulysses S. Grant, while still president, was arrested for speeding in his horse-drawn carriage in Washington, D.C. He paid a $20 bond but never showed up to court. President Richard Nixon resigned before he was prosecuted for Watergate era crimes, and then pardoned by his successor, Gerald Ford.
The Justice Department is institutionally averse to presidential prosecutions and has a longstanding policy forbidding the criminal prosecution of a sitting president. Prosecuting Mr. Trump would likely raise fears of fresh violence on his behalf; Ms. Willis has already had staffers on the case outfitted with bulletproof vests.
She is a law-and-order prosecutor who is simultaneously conducting an ambitious racketeering prosecution of a number of Atlanta rappers over what her office says is gang-related criminal activity. Mr. Trump has hired an Atlanta lawyer, Drew Findling, known for his zealous representation of local rap stars and for being a fierce critic of the district attorney’s office use of racketeering against rappers, which he has called “completely [expletive] racist.”
If he is indicted, Mr. Trump could seek to have his case removed to the federal court system, part of a potentially protracted legal fight that could end up before the U.S. Supreme Court, and possibly push his trial deep into the 2024 presidential campaign. His lawyers are likely to argue that he is immune from prosecution by virtue of his status as a former president, or that his comments to Mr. Raffensperger were protected under the First Amendment.
As he maintains his innocence, Mr. Trump is turning adversity into opportunity.
“As has been stated many times concerning the World’s longest running Witch Hunt, my phone call(s) to Georgia Officials were PERFECT,” a recent solicitation from his campaign declared. “Please contribute ANY AMOUNT RIGHT NOW to show your support.”
