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The Path For Donald Trump to Possibly Head to Jail Is Clear

Donald Trump. Image Credit: Creative Commons.
Donald Trump. Image Credit: Creative Commons.

Jennifer Rubin tells us in her column last week that “the walls are closing in” on former President Donald Trump–and since we’ve never heard that line from anyone else about Trump we know it must be true. Actually, we’ve heard that line hundreds of times since 2016. But this time…

The Resistance Left, Twitter Democrats, and the MSNBC crowd have broken out in jubilation–AGAIN–after The Washington Post first reported the U.S. Department of Justice is directly investigating Trump in connection to events leading up to Jan. 6, 2021.

The frothing Trump-hating crowd could be looking in the wrong direction to fulfill their single-minded dream.

It will soon be apparent to the leftwing headhunters to gaze south–to Fulton County District Attorney Fani Willis–who is aggressively moving with a grand jury investigating Trump and his close allies for what some suspect would be a racketeering case. Unlike the feds, she might at least have a tangible case to make.

The DOJ is investigating the alternative electors’ charade. So let’s first stipulate that the Justice Department knows more than most of us. But based on what the Jan. 6 House select committee has dug up and news reporting thus far, it seems a successful federal prosecution of Donald Trump would be an extraordinarily heavy lift.

If Attorney General Merrick Garland does cave to activist pressure, the MSNBC hosts and viewers should ponder: Do you really want Trump to crow about being acquitted and exonerated from another “witch hunt?” Vindication won’t likely slow his chances for another run in 2024.

At the federal level, seditious conspiracy isn’t going to happen unless feds can show a legitimate link between Trump world and the Proud Boys, Oath Keepers, or other militant groups that broke into the Capitol. Defrauding the government is a big stretch, despite a zany legal theory pushed. Even the charge of obstructing an official proceeding—seen as most likely—is what some of the actual rioters are charged with. Extending that to Trump is problematic.

Based on what we know–the most commonly floated charges at the federal level rely on trying to interpret certain events into a criminal framework and guess Trump’s intent.

By contrast, the Georgia case is at least predicated on a signature event. Donald Trump’s mere request to Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes constitutes what was arguably attempted election fraud. The problem here is still matching intent with a potential crime. Nevertheless, it’s a stronger case than the feds have.

Willis’s probe has gone well beyond the Donald Trump-Raffensperger call. She’s going after the alternative electors in Georgia, as well as Trump’s personal lawyers Rudy Giuliani and John Eastman, in arguing some type of criminal conspiracy to form a racketeering case.

She has reportedly called on Georgia Gov. Brian Kemp, and two members of Congress–South Carolina Sen. Lindsey Graham and Georgia Rep. Jody Hice–to testify to the grand jury, but as fact witnesses, not targets.

After the Jan. 6 committee goes away, and if Garland decides to avoid the mess of the unprecedented move of charging a former president, the Resistance crowd will turn to Atlanta.

This is the most Democratic-leaning region of Georgia and Willis is an elected prosecutor. So she won’t likely face a downside. Willis is clearly ambitious and sees an opportunity to become a hero to the Democratic Party base. But she should tamper the ambition if she wants her probe to be taken seriously.

She played the part of a political hack by holding a fundraiser for the Democratic candidate for Georgia lieutenant governor when she was investigating his opponent. The GOP candidate for that office, Burt Jones, was among the alternative electors for Trump. For this amateurish move, a state judge presiding over the case rightly prohibited Willis from investigating Jones.

To be clear, even as a local prosecutor, Willis has the apparent legal authority to investigate the matter since the state capital of Georgia is in her jurisdiction. And unlike the federal Justice Department that is largely relying on guessing, she has a finite act to investigate. But if Willis wants to take on a case this big and be taken seriously, she better rise above embarrassing politicking.

So we return to the core problem with her case – proving intent and what Trump actually meant by “find.” Trump’s post-election legal team may seem today like stooges, but they advised him at the time he had far more votes in Georgia that were uncounted.

True, the select committee has demonstrated the more level-headed folks in Trump’s inner circle advised him that’s not the case. Trump listened to those who told him what he wanted to hear and there isn’t reason to think he didn’t believe them.

So the argument for prosecution isn’t that Trump wouldn’t or couldn’t accept that he lost the election. That’s already clear. The presumption for prosecution at the federal or state level is that Trump totally accepted he lost and nevertheless tried to reverse the outcome.

As for Willis expanding the net of her probe to include alternative electors–this seems a tougher mountain to climb.

The final outcome of the 2020 election was determined on Dec. 14 of that year when the Electoral College voted. Trump enthusiastically accepted—practically wallowed in—bad legal advice about trying to repeat an 1876 scenario of alternative electors. Unlike 1876, no state legal authority recognized a competing set of electors.

It was patently silly. But was any of this a crime? Maybe that’s what investigations are for.

The alternative electors were a sideshow. Yes, 147 Republicans in Congress engaged in what they thought would be just plain old inconsequential political theater in challenging the certification of Joe Biden’s victory. And, let’s face it, there were reasons to cast a protest vote on how some states set aside election laws in 2020. I would be surprised if any one of those 147 believed they could flip the outcome. It was supposed to have no consequence and no political downside.

Then a riot happened.

Had there not been a riot at the Capitol on Jan. 6, 2021, the entire “stop the steal,” pretend electors, challenging the certification, etc. would have just been remembered as political theater with a great showman in Trump playing the starring role and a few dozen supporting actors.

But there was a riot. This created grounds for Donald Trump’s enemies to probe whether what at first seemed like mere nonsense was in fact criminal.

Unlike others, Willis has a predicate for investigating Trump that isn’t reliant on a riot by hundreds who apparently have no direct connection to the 45th president. Of the prosecutors who have tried to get Trump, she might comparatively have the best case so far. That still doesn’t mean it would be a strong one in court. But it is the sole Donald Trump case to keep an eye on—at least for now.

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”

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Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of "The Right Side of History" podcast. Lucas is also the author of "Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump."