Donald Trump and his merry band of indicted lawyers and fake electors tried to overturn the 2020 election results in Pennsylvania, Wisconsin, Arizona, New Mexico, and Michigan.
But only the Peach State has brought criminal charges against them.
The criminal indictment against Trump and his 18 co-defendants from Fulton County District Attorney Fani Willis has many wondering: Why is a local prosecutor in Atlanta in charge of bringing a sprawling criminal case over the former president’s scheme to overturn the 2020 election?
In the words of David Graham in The Atlantic, Willis’s indictment “gives a fuller picture of Trump’s attack on American democracy than any other indictment so far.” It “is the first to plumb the full depths, through a state-focused bathyscaph, of the conspiracy,” Norm Eisen and Amy Lee Copeland wrote in The New York Times.
Justice Department Special Counsel Jack Smith, after all, identified Arizona, Michigan, Pennsylvania, Nevada, New Mexico, and Wisconsin as places where Trump tried to stop electoral votes from being counted, and is still reportedly examining the role of fake electors in those states. All of those places have been sites of civil lawsuits and legislative tussles over election results. So why haven’t any of those states brought criminal charges against Trump?
The answer is twofold, experts say.
Trump went further in Georgia than in any other state to overturn the results of the election.
And, unfortunately for him, Georgia’s laws against criminal conspiracy have sharper teeth.
At the DOJ, Jack Smith is in charge
The Justice Department is taking action — just not at the same rhythm as Georgia.
Its prosecution of people who participated in the January 6, 2021 insurrection at the US Capitol has been described as the biggest investigation in the department’s history, with more than 1,100 people charged so far. But while many defendants say Trump marshalled them to the Capitol that day, prosecutors haven’t held Trump directly accountable for their actions.
Smith’s July indictment against Trump gets close to blaming him directly for the riot, saying he “directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification” of votes, and “attempted to exploit the violence and chaos at the Capitol” once the chaos was underway by pressuring lawmakers not to certify Biden’s victory.
In addition to bringing criminal charges against Trump personally, Smith is examining other modes of interference in the 2020 election. His office has met with state election officials and subpoenaed records and testimony to obtain information about fake electors, Trump’s lawyers, breaches of election equipment, and fundraising efforts.
The Justice Department has separately brought criminal cases against people accused of threatening election officials. Many of those defendants falsely insist that Trump was the true winner of the 2020 election.
Kathy Boockvar, Pennsylvania’s secretary of state during the 2020 election, told Insider that Trump’s lies about his loss to now-President Joe Biden have led to threats against election workers across the country.
“People’s lives and their families have been threatened as a result of this deliberate dissemination of lives and hostility,” Boockvar said. “The level of hostility that has followed the last couple of years — it didn’t exist before 2020. Our leaders empowered that, encouraged that.”
There needs to be “accountability,” she added.
Yes, there’s action happening in other states
Law enforcement officials in different swing states have investigated plots to overturn election results, though it’s not clear if any of them will bring charges against Trump himself.
Attorneys general in Michigan, Wisconsin, and New Mexico — all of whom are Democrats — have referred information about fake elector schemes to the Justice Department, according to the Washington Post.
Aside from Georgia, Michigan has made the furthest strides in its criminal investigation into election interference.
In July, Michigan Attorney General Dana Nessel announced charges against 16 fake electors who met in secret and fabricated documents stating Trump won the state, even though he lost by more than 150,000 votes.
“This remains an ongoing investigation, and our department has not ruled out potential charges against additional defendants,” Nessel said in a statement at the time.
In May, Arizona’s attorney general assigned a team of prosecutors to examine the state’s fake electors. Officials have requested records from election officials and asked about evidence that Smith has already collected, according to the Washington Post.
Wisconsin Attorney General Josh Kaul has declined to say whether his office would investigate efforts to overturn election results. But publicly available information about the state’s fake electors demonstrates a solid basis for state-level criminal charges, according to an analysis from Just Security.
“What we already know is sufficient to tell us that some sort of judicial reckoning must take place,” the authors wrote in an analysis of a potential criminal case.
Nevada’s attorney general has said the state’s fake electors would not face state-level charges.
“We ascertained that current state statutes did not directly address the conduct in question,” the state’s attorney general, Aaron Ford, said at a May legislative hearing for a law that would criminalize fake electors.
Pennsylvania’s former attorney general Josh Shapiro, who is now the state’s governor, said his state’s fake elector scheme was “intentionally misleading and purposefully damaging to our democracy” but did not meet “the legal standards for forgery.”
In Pennsylvania and New Mexico, the pro-Trump electors used provisional language in their certification documents, saying their votes should be counted by Congress only if a court were to find Biden’s victory illegitimate. Since that never happened, those schemes could be less vulnerable to claims that they were criminal attempts to supplant legitimate electors.
Georgia’s RICO law is uniquely suited to the case
In Georgia, finding the right laws to charge Trump was never a problem.
From early in the investigation, it was clear Willis would consider bringing charges under Georgia’s RICO — or racketeering — statute.
Each state has its own RICO statute, which were generally passed throughout the 20th century to crack down on mob organizations. In general, the laws allow prosecutors to bring criminal charges against people involved in a pattern of illegal activity.
Willis has called herself “a fan” of the statute. Georgia’s version of the law is exceptionally flexible. In her time as district attorney, Willis has used it to bring criminal charges against schoolteachers who participated in a cheating scandal and members of a record label she alleges functioned as a criminal gang. In 2021, she hired John E. Floyd, the author of a widely used textbook on RICO laws, to join her office.
According to a Brookings Institution analysis, Georgia’s RICO statute includes an unusually large number of potential crimes that can form the basis of a RICO indictment. Any “attempt, solicitation, coercion, and intimidation” of another person to commit those crimes is also wrapped into the statute, which makes it particularly potent for the conspiracy to overturn the election results.
“Georgia’s RICO statute fits those facts like a glove,” Eisen, a co-author of the analysis, previously told Insider. “That’s because the attempted coup DA Willis is investigating was a comprehensive assault on our democracy, and doing a larger case under RICO would better get at that and would achieve broad accountability against those responsible, above all Donald Trump.”
Trump went further in Georgia than in other states
Trump’s actions in Georgia also set the state apart. Willis’s investigation began after Trump told Brad Raffensperger, the Georgia secretary of state, to “find” him the votes that would close the gap of his loss to Biden in the state. Raffensperger’s office recorded that call, which made its way to media outlets.
“So far as I know, in none of these other investigations do they have a recording of former President Trump trying to persuade officials to take certain actions,” Ronald Carlson, a professor at the University of Georgia School of Law, previously told Insider. “The secretary of state of Georgia is responsible for that. He’s the one that recorded the phone call, which said, ‘Brad, I want you to find me 11,780 new votes.’”
Trump wasn’t as explicit in other states — or if he was, no evidence of it has been turned up in the exhaustive investigations that followed the January 6 riots.
“The facts that happened in Georgia, with the former president calling up the secretary of state and telling him to find 11,000-odd votes — that didn’t happen in Pennsylvania,” Boockvar told Insider. “I never received a call from the former president asking me to do anything.”
In a letter to Republican Rep. Jim Jordan of Ohio this week, Willis noted that, if Trump didn’t want to get charged in Georgia, he shouldn’t have sought to interfere in the election.
“Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia,” Willis wrote. “In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility.”
Willis also helpfully pointed to a resource that would help Jordan, who has railed against the indictment, to learn more about Georgia’s version of criminal law.
“For a more thorough understanding of Georgia’s RICO statute, its application and similar laws in other states, I encourage you to read ‘RICO State-by-State,’” she wrote. “As a non-member of the bar, you can purchase a copy for two hundred forty-nine dollars [$249].”
The book was written by John E. Floyd — the same RICO expert she hired to join her office.
He was assigned to the Trump case.