On July 5, the Fulton County, Georgia, special grand jury issued seven subpoenas, confirming that District Attorney Fani Willis’s investigation of the 2020 election criminal conspiracy around Donald Trump is now national in scope.
The court approving the subpoenas referred to a “multi-state coordinated plan by the Trump campaign to influence the November 2020 election results in Georgia and elsewhere.” That’s law-speak for several serious election-manipulating crimes under Georgia’s law.
Clearly, one courageous local justice department is pursuing those atop the attempt to destroy our republic after the last presidential election. US Attorney General Merrick Garland seems to be proceeding methodically — if with frustrating slowness — on the same path. Federal arrests or searches of Trump insiders like John Eastman and Peter Navarro and indictments of leaders of the Proud Boys and the Oath Keepers point to an investigation gradually moving up the ladder with respect to both the bloodless coup attempt and the violent insurrection.
The Georgia subpoenas compel the testimony of Republican Senator Lindsey Graham of South Carolina; Trump’s personal lawyer, Rudy Giuliani; and Trump lawyer John Eastman, the alleged architect of the plan to pressure Vice President Mike Pence to reject or delay Congress’s constitutionally mandated electoral count on Jan. 6, 2021. Also subpoenaed was Kenneth Chesebro, another lawyer who reportedly worked with Eastman on his scheme.
The plot would have overturned the people’s will by having battleground state legislatures illegally reverse their official certifications of Joe Biden’s election, ending our two-century tradition of transferring power lawfully. The United States would, for the first time, have permitted an incumbent, defeated president to hold onto power, plunging the United States into a dictatorship. Through her investigation, Willis is affirming that no one is above the law.
After the 2020 election, much of Team Trump’s focus was on Georgia, where Governor Brian Kemp, Secretary of State Brad Raffensperger, and both houses of the Legislature were Republican. Recall Trump’s taped Jan. 2, 2021 phone call pressuring Raffensperger to “find 11,780 votes.” That’s one more than needed to overturn the Georgia election. The request was backed by a thinly veiled threat by the former president that failure to “find” those votes would expose Raffensperger and his counsel to unspecified criminal liability. That was, of course, false.
There’s also the Dec. 3, 2020, meeting that Giuliani and Eastman held with Georgia legislators. Eastman’s subpoena stated that he “advised lawmakers that they had both the lawful authority and a ‘duty’ to replace the Democratic Party’s slate of presidential electors,” who would vote for Biden. No competent lawyer could possibly have believed any such thing. California state bar authorities have an ethics investigation of his conduct already underway.
Giuliani and others also met with and pressured Arizona, Michigan, and Pennsylvania legislators.
Also reported to be within Willis’s sights was another arm of the octopus conspiracy, the bogus electoral slate scheme that Giuliani reportedly coordinated. Battleground state Republicans who participated in the scheme sent slates that included flatly false statements that their electors were “duly elected and qualified.”
We were lucky last time. A multitude of law-abiding individuals and fortunate events stopped the “quiet” phase of the coup to keep Trump in power. State legislators couldn’t lawfully change rules in the middle of the game, much less after the game had been concluded. Pence refused to be strong-armed into rejecting or delaying the certification.
That could well change next time. Republicans control both houses of nearly all battleground state legislatures and are now systematically changing the rules. And they are doing so under the sympathetic eye of a politically radical Supreme Court.
Next term, in Moore v. Harper, that court will entertain an extremist, fringe theory that state legislatures can do whatever they want in elections. According to the theory, a state legislature could disregard directions by the state’s highest court enforcing the state constitution’s rules that ensure full and fair counting of all lawful ballots. As we and others have written, the euphemistically named “independent state legislature” theory is utterly without legal basis and contrary to our entire constitutional scheme. But sadly, that is no guarantee that the current court will reject it.
As for holding to account those who sought to remake our country in the last election, the danger of one-man rule became palpable in Jan. 6′s violence. That was Trump’s last gasp at keeping his power after the lawyers’ less visible machinations failed.
But lest you think that those quieter parts of the multi-faceted conspiracy to overturn the presidential election were unconnected to the violence, a recent telling clue suggests what prosecutors at the Justice Department and in the Fulton County district attorney office are surely investigating. According to The New York Times, now-subpoenaed lawyer Kenneth Chesebro wrote Eastman on Dec. 24, 2020, that prospects for intervention by the Supreme Court in then-ongoing Wisconsin election litigation would increase “if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”
That tantalizing tidbit connecting the legal efforts with the insurrection brings to mind Trump’s Dec. 18 tweet inviting supporters to the Capitol on Jan. 6. Trump tweeted that it “will be wild.” Did Chesebro know about the chaos in advance?
The conspiracy that nearly ended the American experiment should motivate every voter to go to the polls this midterm. Meanwhile, we can have faith in unrelenting prosecutors like Fani Willis to hold the 2020 conspirators to account so that this nation, conceived in liberty, can endure as a government of, by, and for the people.
Laurence H. Tribe is the Carl M. Loeb University professor emeritus at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.