Editor’s Note: Elie Honig is a CNN senior legal analyst and former federal and state prosecutor, and author of “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.” The views expressed here are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.
As a special grand jury convenes to consider potential criminal charges against former President Donald Trump, we’ll surely learn much about the evidence gathered by Fulton County District Attorney Fani Willis and her team of prosecutors and investigators in Georgia. The evidence appears to be sufficient to justify an indictment – but, even if a grand jury ultimately does return a criminal charge, prosecutors will need to overcome a series of legal and practical obstacles before Trump faces meaningful consequences.
We already have a good sense about Willis’ substantive focus. In her January 2022 letter to the Georgia judiciary requesting a special grand jury, Willis wrote that she has evidence establishing a “reasonable probability that the State of Georgia’s administration of elections in 2020 … was subject to possible criminal disruptions.” It is a crime under Georgia law to “solicit” election fraud, including “willfully tamper[ing]” with votes or final certification.
The central piece of publicly-available evidence is Trump’s infamous January 2, 2021 phone call to Georgia Secretary of State Brad Raffensperger. Trump begged Raffensperger to throw some votes his way: “All I want to do is this. I just want to find 11,780 votes.” We’ve now learned that, during that phone call, one of Raffensperger’s deputies was frantically texting then-White House Chief of Staff Mark Meadows, urging him to end the call immediately.
The key will be establishing Trump’s criminal intent. His defenders likely will argue that he genuinely believed he had won the Georgia election (despite all evidence to the contrary) and that he merely wanted to ensure a full and fair vote count. But prosecutors will focus on Trump’s use of the word “find.” If Trump truly believed he had won, and had received more votes than Joe Biden, why would he need Raffensperger to “find” votes? And why precisely 11,780 votes – exactly one more than Biden’s margin of victory?
Despite his status as a central witness, according to Willis’ letter, Raffensperger has declined to testify. She says Raffensperger and other witnesses have made clear that they will testify only if and when they receive grand jury subpoenas.
This is why empanelment of the special grand jury is so important: now, Willis will have the power to issue subpoenas, through the grand jury, to compel witnesses to testify.
It’s crucial to understand that a grand jury is different than a trial jury (sometimes called a “petit” jury) in key respects:
– A trial jury consists of 12 members drawn randomly from the population, whereas a grand jury can be as large as 23 members. The Fulton County special grand jury will have a full slate of 23 grand jurors, plus three alternates.
– The trial jury’s job is to determine a defendant’s guilt or non-guilt, either of which requires unanimity (anything short of unanimity results in a “hung jury” and a mistrial). A grand jury typically decides whether to issue an indictment, for which a mere majority vote is sufficient. However, the Fulton County special grand jury, on Willis’ request, will not actually vote to indict, but rather may issue a recommendation based on its findings; Willis, in turn, can then seek an indictment from a regular grand jury.
– The prosecutor must prove a defendant’s guilt to a trial jury “beyond a reasonable doubt,” which is the highest burden of proof in our legal system. But a grand jury needs to find only proof by “probable cause” – meaning the defendant more likely than not committed the charged crime – to issue an indictment. (Note: that prosecutors often will not seek an indictment unless and until they have a higher level of proof, as a matter of discretion).
Trials are public proceedings, but the grand jury operates in secret, so we will not see the Fulton County grand jury proceedings as they happen. However, grand jury secrecy is binding only on prosecutors, grand jurors and grand jury staff. Witnesses typically can, and often do, disclose publicly that they have received a subpoena, and they can openly discuss the subject of their testimony, if they so choose. Moving forward, we likely will have at least some idea of who is appearing before the grand jury, and what they are saying.
Willis has thus far moved at an inexplicably slow pace. The events at issue happened in late 2020 and early 2021; the fateful Trump call to Raffensperger was on January 2, 2021. Yet only now, nearly a year and a half later, has Willis convened a grand jury. And it seems we’ll have to wait quite a bit longer to see the ultimate outcome.
Even if the special grand jury does eventually return a recommendation to indict, Willis will then need to present evidence to a regular grand jury, which has the actual power to indict, if she chooses to that take step. That will take even more time. It’s difficult to square the seriousness of the potential crimes here – an attempt by the then-President to steal an election – with the decidedly casual pace of the proceedings.
If Willis ultimately does obtain an indictment of Trump, it is far from a sure thing that he will be convicted and imprisoned. First, Trump surely will move to dismiss the indictment. He likely will argue that he is a victim of what lawyers call “selective prosecution” (meaning he has been singled out for political reasons), and he might claim that it is unconstitutional for an elected county-level district attorney, who happens to be a Democrat, to indict a former president.
Even if an indictment survives those legal challenges, then the DA’s office will have to try its case and prove Trump’s guilt beyond a reasonable doubt to the unanimous satisfaction of the jury. No trial verdict is a sure thing, and it can be particularly difficult to convict a universally-known personality like Trump, who evokes strong feelings of loyalty from his supporters (and visceral disdain from many detractors).
Even if a trial jury convicts Trump, a judge will then have to decide whether to sentence him to prison time. And any conviction and sentence must survive the appeals process, which can take many months.
We’ll learn much in the weeks ahead about the DA’s proof and investigation. Trump faces real legal jeopardy here. But genuine questions remain about whether (and when) he will actually be indicted. Even then, Willis faces an uphill battle to secure his conviction and a meaningful sentence.