Fred: All right, tomorrow in Atlanta the Fulton County district attorney is expected to begin the selection process for a special grand jury to decide if former President Donald Trump should be charged for trying to pressure Georgia officials into overturning Joe Biden’s election win in that state in 2020. Prosecutors are looking into a January 2021 phone call in which Trump pushed Georgia Secretary of State, Brad Raffensperger to “Find the votes needed for him to win that state.”
Page Pate is a constitutional law and criminal defense attorney. And he’s with us now. Page, good to see you. So, given what you know, do you think it’s possible a special grand jury could recommend an indictment for former President Trump?
Page: I do, Fred. The special grand jury, of course, doesn’t have the power to indict Trump or anyone else on its own, but what they do have the power to do is subpoena witnesses for testimony, subpoena documents, review all of that evidence, and then make a recommendation as to whether or not another grand jury should actually indict the president and perhaps other people for this particular attempt at election interference.
Now, there are a number of different crimes that could apply here, misdemeanors, felonies, it will be up to this grand jury to look at the evidence and then make a recommendation as to what, if any, crime should be pursued.
Fred: And included in that evidence has to be this infamous call, right, former President Trump called Georgia Secretary of State Brad Raffensperger in January 2021. Here’s a portion of that call.
President Trump: So, look. All I wanna do is this. I just wanna find 11,780 votes, which is one more that we have because we won the state.
Fred: So what does that sound like to you? What will that sound to the potential grand jurors?
Page: Well, it sounds like the former president is attempting to interfere with the election results. But here’s what’s critical. We do not, at this point, have the secretary of state’s testimony about how that call affected him. If the district attorney is going to pursue Trump for interfering with election results by soliciting the secretary of state to not do his job, well then, we need to hear from the secretary of state. And that’s why we have this special grand jury. The secretary of state is not gonna voluntarily come forward and cooperate with the district attorney. So, she had to empanel this special grand jury. So, how that call affected him, I think is critical to the analysis of this case.
Fred: Well, will it be submissible? All of the interviews that Raffensperger did, where he did talk about his experience in that call, and he may have intimated if not said directly, what his feelings were. Is that admissible?
Page: It’s admissible if there was a prosecution against Raffensperger, but to actually be admissible in a trial against Trump, you’ve gottta have the testimony of the secretary of state. That’s why it’s so important to find out how he took that call and what if anything he did in response to that call.
Fred: Interesting. All right, so this is a county grand jury hearing, is the bar for an indictment any different in this type of hearing as compared to a federal court?
Page: No, the bar is the same. Is there probable cause that a crime has been committed? The difference here, again, we’re dealing with a special grand jury under state law. They don’t have to finish their work in a month or two months. They can take much longer than that. So, the analysis is going to be the same, but this process may take even longer.
Fred: Interesting. All right, Fulton County, DA, Fani Willis, said in an April interview with “The Atlanta Journal-Constitution” that she will wait until after the state’s May 24th primaries to issue subpoenas to public officials. So, maybe that’s an answer to the Raffensperger. So, do you see that, among those subpoenas, it could include Georgia Republican Governor Brian Kemp?
Fred: And, of course, the secretary of state?
Page: Yes, absolutely. But again, I think she’s smart to wait until after the primary, because then, potentially, they’ll either be out of office, in which case or at least on the way out of office, they may not be as reticent to testify about what Trump did to them and how that affected them. Or, you know, she doesn’t want their testimony to be with one eye towards the election. So, I think waiting still the primary is over is certainly a smart move.
Fred: Will you also see a potential subpoena for the former president?
Page: It’s possible, but I don’t think that’s going to happen. Normally, if you’re the target of a grand jury, you’re not gonna get a summons to appear in front of the grand jury. The investigations about you calling you to actually testify would be very unusual. What I do expect to see is some of the people, recipients of these subpoenas, challenging them in court. And there has been a Fulton superior court judge appointed to handle those challenges. And I think he’s gonna have a lot of work to do here.
Fred: All right, Page Pate, good to see you. Thanks so much.
Page: Good to see you.
Fred: All right…
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.