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What’s Actually New in the Georgia Indictment?
It overlaps with one of the federal indictments—but the Fulton County indictment includes disturbing new details about Trump’s alleged ‘criminal enterprise.’
THIS WEEK’S INDICTMENT OF DONALD TRUMP and 18 alleged co-conspirators, handed down by a grand jury in Fulton County, Georgia, asserts that “Trump and the other Defendants . . . knowingly and willfully joined a conspiracy to unlawfully change the outcome” of the 2020 election. But many of the acts detailed in the indictment, such as tweets and testimony at hearings, were out in the open. Trump and his collaborators will say—in fact, they’re already saying—that they genuinely believed the election had been stolen, and they were just trying to correct that injustice.
What’s the evidence that these people knowingly and willfully participated in a conspiracy, as opposed to a legitimate effort to contest the election results?
The Georgia indictment enumerates many acts that demonstrate the defendants’ deceit or awareness of illegality. Some of these acts were mentioned in the federal indictment of Trump released on Aug. 1. But others are new. Here’s a guide to some of these key allegations in the Fulton County indictment.
1. Trump prepared his fraud claims before the election.
The indictment says that on Oct. 31, 2020, four days before the election, Trump “discussed a draft speech with unindicted co-conspirator Individual 1 . . . that falsely declared victory and falsely claimed voter fraud.” Trump then delivered that speech on election night. Even if the election had turned out to be marred by widespread fraud, Trump presented no basis for saying that—and in most cases, he couldn’t have known, since the fraud wouldn’t even have happened yet—at the time he prepared his speech. So he knew he was making it up. (See Act 1 of the indictment.)
2. Trump made statements that he knew, from direct experience, were false.
The indictment cites two incidents. First, on Jan. 3, 2021, Trump tweeted that “I spoke to [Georgia] Secretary of State Brad Raffensperger yesterday” and that in their conversation, Raffensperger “was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters,’ dead voters, and more.” But audio of the phone call shows that in fact, Raffensperger answered each of these questions. (See Act 114)
Second, on Jan. 5, 2021, after several conversations with Vice President Mike Pence, Trump issued a statement that asserted, “The Vice President and I are in total agreement that the Vice President has the power to act. . . . He can decertify the results or send them back to the states for change and certiﬁcation. He can also decertify the illegal and corrupt results and send them to the House of Representatives.” But in fact, Pence’s notes and other witnesses have made it clear that Pence told Trump he didn’t agree. (Act 133)
Since Trump directly participated in these conversations, his lawyers can’t plausibly claim that he sincerely believed his statements were true. He knew what had happened.
3. Trump and Jeffrey Clark pressed leaders of the Department of Justice to issue statements that Trump and Clark knew the DOJ leaders didn’t believe.
According to the indictment, on Dec. 27, 2020, Trump “solicited Acting United States Attorney General Jeffrey Rosen and Acting United States Deputy Attorney General Richard Donoghue to make a false statement.” The indictment says Trump told them: “Just say that the election was corrupt, and leave the rest to me and the Republican congressmen.” (Act 97)
Then, on Dec. 28, 2020 and Jan. 2, 2021, Clark—a Trump accomplice within DOJ—pressed Rosen and Donoghue “to sign and send a document that falsely stated that the United States Department of Justice had ‘identiﬁed signiﬁcant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.’” (Acts 98, 99, 111)
Trump and Clark knew, from conversations they had witnessed, that Rosen and Donoghue didn’t believe that the election was corrupt or that DOJ had identified outcome-determinative fraud. So Trump and Clark knew they were asking Rosen and Donoghue to lie.
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4. John Eastman filed allegations in court that he knew were false.
On Dec. 31, 2020, Eastman filed a complaint in federal court—signed by Eastman and Trump—claiming that 66,247 underage people, 2,423 unregistered voters, and thousands of felons and dead people had voted illegally in Georgia. But according to the indictment, “Earlier on the same day . . . EASTMAN sent an e-mail to attorneys associated with the Trump Campaign admitting his knowledge that at least some of the allegations in the verified complaint were not accurate.” (Act 108)
5. Eastman and Kenneth Chesebro knowingly defied the Electoral Count Act.
On Dec. 13, 2020, Chesebro, a lawyer allied with the Trump campaign, sent an e-mail to Rudy Giuliani, who was helping to lead Trump’s legal team. In the email, Chesebro outlined a plan to derail congressional certification of the election results. The plan was, in his words, “preferable to allowing the Electoral Count Act to operate by its terms.” Three weeks later, on Jan. 4, 2021, Chesebro included the same phrase in an email to Eastman. (Acts 70, 124)
On Jan. 4, Eastman and Trump met with Pence and urged him, through two possible routes, to derail the certification. According to the indictment, “During the meeting . . . EASTMAN admitted both options violated the Electoral Count Act.” (Act 125)
Then, on Jan. 6, Eastman sent an e-mail to Pence’s vice-presidential counsel, urging him—in Eastman’s words—“to consider one more relatively minor violation” of the ECA. In reality, what Eastman sought was a major violation: to “adjourn for 10 days” and await further investigations of alleged fraud, which would almost certainly disrupt the transfer of power two weeks later. (Act 141)
The ECA is federal law. So Eastman and Chesebro were explicitly conspiring to violate the law.
6. Eastman dismissed legal constraints and fact-finding procedures.
The Trump team’s plan to overturn the election was to recruit some of his loyalists as “electors,” have them convene in key states on Dec. 14 to award him their “electoral votes,” and then use Pence to substitute these fake electoral slates for the real ones. On Dec. 23, 2020, in a memo e-mailed to Chesebro “and unindicted co-conspirator Individual 3,” Eastman brushed off the idea that these maneuvers needed to pass legislative or judicial scrutiny.
As for hearings, I think both are unnecessary. The fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. And I agree with Ken that Judiciary Committee hearings on the constitutionality of the Electoral Count Act could invite counterviews that we do not believe should constrain Pence (or Grassley) in the exercise of power they have under the 12th Amendment. Better for them just to act boldly and be challenged, since the challenge would likely lead to the Court denying review on nonjusticiable political question grounds.
Eastman’s words convey utter contempt for morality and the rule of law. He was saying that the scheme didn’t need to be scrutinized, that the truth didn’t need to be established, that contrary views should be buried, that courts should be sidelined, and that power should be exercised without regard to precedent. (Act 94)
7. Giuliani, Chesebro, and other conspirators tried to conceal the Dec. 14 meetings of Trump’s “electors.”
Presumably, Trump’s lawyers will argue that the alternative “electors” scheme was an honest contingency plan, because he and his advisers sincerely believed he had won. But that story doesn’t square with the subterfuge employed by the conspirators.
According to the indictment, in a phone call with Chesebro on Dec. 12, 2020, Giuliani “stated that the media should not be notiﬁed of the December 14, 2020, meeting of Trump presidential elector nominees in Wisconsin.” (Act 64) Then, in a Dec. 13 e-mail about a similar planned meeting of Trump “electors” in Georgia, Chesebro advised his fellow conspirators that Giuliani “wants to keep this quiet until after all the voting is done.” (Act 72) And in a text message on Dec. 14, David Shafer, the chairman of the Georgia Republican party, said Trump’s Georgia “electors” should be instructed “to go straight to Room 216 to avoid drawing attention to what we are doing.” (Act 76)
(For more on why the fake electors scheme is “the beating heart of the Georgia indictment,” and how the indictment demolishes the “it was just a contingency plan” defense, see Philip Rotner’s article on the Bulwark homepage today.)
8. Sidney Powell and other conspirators subsequently lied to investigators about what they had done.
The indictment cites numerous alleged statements, made to investigators after the plot’s failure, that have proved to be false. For example, Powell denied that she had any role in a scheme to illegally access voting machines in Coffee County, Georgia without proper authorization, with the aim of subjecting the machines to a forensic analysis for which Powell allegedly hired a contractor. (Acts 33 and 159) Cathleen Latham, the Coffee County GOP chair, denied knowing about and facilitating elements of the same scheme. (Act 160) Shafer denied that a court reporter was present at the Georgia meeting of Trump’s “electors” on Dec. 14. (Act 158) And Robert Cheeley, a lawyer charged in the plot, denied prior knowledge of that same meeting. (Act 161)
If these people truly believed their acts were legitimate, why would they falsely deny them?
The indictment also describes many other acts as part of the alleged conspiracy. But these are the most difficult ones to explain. Honest people don’t rehearse claims of fraud before it happens. They don’t file allegations they know are false. They don’t misrepresent statements they directly witnessed. They don’t scheme to bypass courts and legislative hearings to seize power. They don’t try to hide what they’re doing, and they don’t lie about it afterward.
Trump and his accomplices did all these things. Their campaign to overturn the election wasn’t just deluded. It was corrupt.