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But there’s more...
(And it’s only Monday)
As if last night’s lengthy “The Week Ahead” newsletter wasn’t enough, three big stories broke today.
First, a Fulton County, Georgia, judge dissolved the special grand jury that had been investigating possible criminal election interference in the 2020 election for eight months and thanked them for their service. Their report and recommendations are complete. The judge scheduled a hearing for January 24 to decide whether the report should be released, although we may not know the outcome of the issue that day, as the side that loses will be able to appeal.
Meantime, the District Attorney is free to present any defendants/charges she believes merit prosecution to her regular grand jury to seek indictment. Perhaps coincidentally, her regular grand jury meets on Tuesdays, and the 24th is a Tuesday.
District Attorney Fani Willis’s investigation started with the phone call then-President Trump made to Georgia’s Secretary of State, Brad Raffensperger, on January 2, 2021. Raffensperger must have had some inkling of what was up, because he had the presence of mind to tape the call. Although Willis’s investigation has likely ranged beyond the call—she sent target letters to 18 people, including Georgia state party officials—we don’t know yet whether she’ll bring charges and who or what types of crimes they will involve if she does.
The grand jury requested that the court release their report. That forces me to flag one note of possible caution. Georgia law explicitly excepts materials in ongoing criminal cases from public disclosure laws. So one has to wonder, at least in the back of one’s mind, whether the request signals that they did not recommend prosecution. To try to assuage that concern, let’s review the call Trump and Raffensperger had, which is full of evidence suggesting Trump solicited, conspired, and attempted to cause Georgia officials to engage in election fraud, all of which are crimes in Georgia.
Here are the high points. You can listen to or read the transcript of the full call here.
“If we could just go over some of the numbers, I think it’s pretty clear that we won. We won very substantially in Georgia. You even see it by rally size, frankly.” Not true.
“Much of that had to do with Fulton County, which hasn’t been checked. We think that if you check the signatures—a real check of the signatures going back in Fulton County—you’ll find at least a couple of hundred thousand of forged signatures of people who have been forged. And we are quite sure that’s going to happen.” Not true.
“The number’s large. We’ll have it for you. But it’s much more than the number of 11,779 that’s—the current margin is only 11,779.” True. Trump lost by 11,779 votes in Georgia.
Trump had lots of different examples of fraudulent votes, like this one: “You had 18,325 vacant-address voters. The address was vacant, and they’re not allowed to be counted. That’s 18,325.” None of his examples were true.
“The bottom line is, when you add it all up and then you start adding, you know, 300,000 fake ballots. Then the other thing they said is in Fulton County and other areas—and this may or may not be true, this just came up this morning—that they are burning their ballots, that they are shredding, shredding ballots and removing equipment. They’re changing the equipment on the Dominion machines, and, you know, that’s not legal.” Trump’s bottom line—not true.
Raffensperger told Trump point-blank, “We don’t agree that you have won.” Based on other evidence collected by the January 6 committee, there’s reason to believe Trump was already well aware of that. Raffensperger patiently went point by point through Trump’s fraudulent allegations, explaining why they were not true and concluding that a recount had produced virtually the same results. “Mr. President, the challenge that you have is the data you have is wrong.”
Unable to refute Raffensperger’s facts, Trump relied on his classic approach, bullying: “Brad, whether you know it or not, they’re laughing at you. And you’ve taken a state that’s a Republican state, and you’ve made it almost impossible for a Republican to win, because of cheating, because they cheated like nobody’s ever cheated before. And I don’t care how long it takes me, you know, we’re going to have other states coming forward—pretty good.”
Trump threatened Raffensperger with the possibility he would be prosecuted if he didn’t change the count: “And you are going to find that they are—which is totally illegal—it is more illegal for you than it is for them, because, you know, what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.”
And then he made the ask: “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.” “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
Mark Meadows, then Trump’s chief of staff, interjected as the conversation continued, potentially placing himself in the middle of a conspiracy: “Mr. President, this is Mark. It sounds like we’ve got two different sides agreeing that we can look at those areas, and I assume that we can do that within the next 24 to 48 hours, to go ahead and get that reconciled so that we can look at the two claims and making sure that we get the access to the secretary of state’s data to either validate or invalidate the claims that have been made. Is that correct?”
It takes a lot for a mere secretary of state, backed up only by his lawyer, to stand up to the President of the United States, his chief of staff, and three of his lawyers. Americans owe a debt of gratitude to the two Georgians for acting honorably, when it would have been far easier to give in to the bully. We’ll stay tuned, although I think it’s unlikely we’ll see anything before the 24th. But Willis could go to the grand jury at any time, sealing any indictments she obtains until the court rules on disclosure of the report.
Second story today: There is reporting, now confirmed by his attorneys, that a small number of classified documents were found in a box in a locked closet in Joe Biden’s office at the Penn Biden Center. The President’s personal lawyers were packing up the office, which he had not used since the 2020 campaign began, when they found them. The documents were immediately and voluntarily turned over to the National Archives. A source told NBC News the President was unaware they were there and learned of them only when his lawyers advised him of their existence.
The National Archives alerted the Justice Department to the situation, and Attorney General Merrick Garland assigned the matter to one of the two remaining U.S. Attorneys who were appointed by Trump for investigation.
Republicans took to Fox News to demand prosecution (without realizing that means Trump, too, would merit prosecution apparently). But there are important differences between today’s report and Trump’s situation, where over 100 classified documents were found in his personal office and elsewhere at Mar-a-Lago. Trump refused to return documents when the White House Counsel told him they had to be returned before he left the White House. He refused to return them voluntarily when the National Archives asked politely. He only returned a few of them after DOJ got wind of the matter months later and sent him a subpoena. He caused his attorneys to submit a certificate indicating all classified material had been returned to the National Archives and Records Administration. That wasn’t true. DOJ developed probable cause to believe it wasn’t true, compiled an affidavit that convinced a federal judge to issue a search warrant for Mar-a-Lago, and found the horde of classified material when they searched. (That search, by the way, was disclosed by Trump. DOJ kept the matter completely secret until then.)
Next, Trump filed a lawsuit that was ultimately dismissed by the 11th Circuit Court of Appeals as baseless. He sued to try to interfere with, and was successful in delaying, DOJ’s criminal investigation. And even after the search, more documents were discovered in a storage area.
That’s a big difference from immediate and voluntary turnover of documents found locked away in an unused office. There was no obstruction by Biden’s team. His lawyers immediately brought their find to the National Archives’ attention. Biden did what Trump should have done. Mistakes happen, although they shouldn’t. The question is, what do you do about them? Biden’s team did everything right. Trump did not.
The reason a refusal to return items upon request and subsequent obstruction matters is because it establishes that the improper possession of classified material wasn’t just an innocent mistake. It shows criminal intent to possess classified material improperly. And DOJ’s precedent regarding whether to prosecute cases like this is that there must be more than mere possession. There must be some type of “plus factor” establishing a willful possession of classified material instead of a mistake.
It’s the obstruction that separates Trump from Biden. The deliberate indifference to national security. The risk it exposed the country to. If Trump had behaved like Biden’s lawyers did, there would have been no need for investigation, search warrant, or indictment. There is a huge chasm between a mistake and an intentional act.
Of course, Trump’s defenders will deliberately miss the point and accuse Democrats of being disingenuous. But they will not have an answer to the fact that DOJ’s precedent dictates prosecution only in the presence of a plus factor beyond possession. Trump supporters will argue Biden held onto his documents for longer than Trump. But that’s irrelevant. It only matters if he knew they were there and deliberately failed to return them, as Trump did.
Tomorrow, President Biden, who is in Mexico for a so-called “Three Amigos” meeting with Canadian and Mexican leaders, will have a press conference and undoubtedly be asked about the documents. We’ll all scrutinize his answers carefully. There will be a full investigation, led by a Trump-appointed U.S. Attorney. If the facts here are as presented, they simply don’t merit prosecution. The two situations could not be more distinguishable.
Third, this story dropped in the early evening:
I’ve always wondered what became of the evidence the January 6 committee laid out in its second hearing, where we learned that Trump continued to spread his story of a stolen election and voter fraud even after the insurrection and used it to fundraise. Committee Senior Investigative Counsel Amanda Wick explained that “the Trump campaign knew these claims of voter fraud were false, yet they continued to barrage small-dollar donors with emails, encouraging them to donate to something called an Official Election Defense Fund.” “Claims that the election was stolen were so successful, President Trump and his allies raised $250 million, nearly $100 million in the first week after the election,” Wick said.
But the money Trump raised mostly went to his newly formed “Save America” PAC, not to “defend the election” as represented. Numerous courts had already ruled against Trump’s fraud claims before the vote was certified on January 6, yet fundraising on that basis continued. Congresswoman Zoe Lofgren suggested that voters were entitled to the truth about the purpose to which their donations would be put. The New York Times reported that campaign finance filings showed “that much of the money spent by political committees affiliated with Mr. Trump went toward paying off his 2020 campaign expenses and bolstering his political operation in anticipation of an expected 2024 presidential run.”
The committee did not present evidence linking Trump directly to the fraud; it appeared to involve staff-level people. Whether DOJ has taken that further isn’t known. Tonight’s reporting involves subpoenas served on Rudy Giuliani regarding the situation.
“Not only was there the Big Lie,” Lofgren said during the hearing, “there was the Big Rip-Off.” At the time of the hearing, my impression was that there was more than sufficient evidence to predicate a fraud investigation on. Now we know DOJ thought so too. As in Georgia, we’ll have to wait and see what happens, but it’s a very interesting development.
Let’s hope for a quiet Tuesday.
We’re in this together,