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Fulton County DA opens criminal investigation into Trump call to Georgia Secretary of State

In the January call, the former president insisted he won Georgia and pressured Sec. Brad Raffensperger to find evidence that would overturn the state's result.

FULTON COUNTY, Ga. — Fulton County District Attorney Fani Willis has opened a criminal investigation into a phone call former President Donald Trump made to Georgia Secretary of State Brad Raffensperger earlier this year, according to a letter she has circulated to state officials -- asking them to preserve documents related to the call as evidence. 

The district attorney's office confirmed the investigation with 11Alive, providing a copy of the letter being circulated which outlines potential charges.

"This investigation includes, but is not limited to, potential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration," the letter states.

In the now-infamous January call, the former president insisted he won Georgia and pressured Sec. Raffensperger to find evidence that would overturn the state's result in favor of President Joe Biden.

Willis' letter says the next Fulton County grand jury is due to convene in March, at which time "this office will begin requesting grand jury subpoenas as necessary." It makes note that there is "no reason to believe" any Georgia official will be investigated.

The district attorney says her office has jurisdiction in the matter because other state and federal agencies - including the Secretary of State's Office, Attorney General's Office, and U.S. Attorney's Office for the Northern District of Georgia - were at various turns pressured by Trump in his campaign to have Georgia's election results overturned.

RELATED: Georgia Secretary of State investigating Trump's efforts to overturn state’s election results, reports say

That, the letter argues, leaves the Fulton County DA's Office as "the one agency with jurisdiction that is not a witness to the conduct that is the subject of the investigation."

"This agency has jurisdiction over this matter because this judicial circuit is where the Georgia government entities that were contacted are headquartered, including the Office of the Governor, the Secretary of State, the Attorney General and the General Assembly," the letter states.

Prosecuting the former president would be a challenge, said former DeKalb County district attorney Robert James.  "District attorneys are typically not involved in prosecuting election fraud. It’s rare," James said. "You're going to have to have the stomach for just the circus type environment; the team of (defense) lawyers just descending on your office filing motions over and over and over again" challenging the prosecution of a former president.  

"This is a prosecution of a public official on steroids," James added.

Copies of the letter from Willis were sent to four officials - Raffensperger, Gov. Brian Kemp, Lt. Gov. Geoff Duncan and Georgia Attorney General Chris Carr.

"This letter is notification that all records potentially related to the administration of the 2020 General Election must be preserved, with particular care being given to set aside and preserve those that may be evidence of attempts to influence the actions of persons who were administering that election," it states.

Read the letter 

Last month the new district attorney told 11Alive she would "enforce the law without fear or favor" if she pursued a prosecution.

"Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable," Willis said. "Once the investigation is complete, this matter, like all matters, will be handled by our office based on the facts and the law."

The Secretary of State's Office reportedly has launched its own investigation into the former president's efforts to overturn Georgia's election results. 

That office however does not have any prosecutorial power, and for it to advance to the criminal stage Willis is pursuing, Raffensperger's team would need to forward their findings to the State Election Board, which would then decide whether to refer it further to Carr.

Spokesperson Walter Jones told 11Alive earlier this week "the Secretary of State’s office investigates complaints it receives. The investigations are fact-finding and administrative in nature. Any further legal efforts will be left to the Attorney General.”

See the full call between Trump and Raffensperger below:

According to the New York Times, which first reported the letter, Willis "has been weighing for several weeks whether to open an inquiry" into Trump's efforts to pressure Georgia officials.

Georgia was a particular focus of Trump's agitation following the election, as he berated state officials including Raffensperger, Kemp, and Duncan on social media. In one instance, he reportedly pressured a state investigator to "find the fraud" he insisted had been undertaken to help President Biden win in Georgia.

Last month, 11Alive spoke with a former federal prosecutor about what he thought of the possibility. Bret Williams owns BRW Law Group in Atlanta and is a former prosecutor for both the Southern District of New York and the Northern District of Georgia totaling 17 years.

And while he also worked previously in the voting section of the Department of Justice's Civil Rights Division, he said this potential trial would be unusual - even for him.

"In my ... understanding of history and research, it is unprecedented," he said. "I don't know, I can't think of another situation like this."

The recorded call between Trump and Raffensperger was first reported by the Washington Post, which released audio on Jan. 3. In the one-hour conversation, Trump is heard pressuring Raffensperger to "recalculate" the vote count because "I just want to find 11,780 votes."

Throughout the call, Raffensperger rejected pushes to do so, standing behind Georgia's final election count which was the result of an initial tally, a hand-audit and a recount requested by Trump's campaign.

RELATED: Former federal prosecutor weighs in on impact of a possible Trump trial in Fulton County

Williams said a case against the former president would likely be neither a "slam dunk" nor an automatic acquittal.

"You can make arguments on both sides as to what the intent is," he said.

He said it would largely come down to whether Trump intended to have Raffesnperger find the votes in question or if the remark was somewhat of an off-handed comment.

"So, I don't think that it's a slam dunk one way or the other," he said. "And I think that you have heard people who speak as if it's just an obvious conviction or obvious acquittal. I don't think it's so obvious. And, when it comes to trials, I would say practically nothing is obvious."

Williams suggested such a trial would be a major undertaking for Willis' office.

"I think one of the first questions is, can you eat an elephant? Are you prepared for - is your office of sufficient size? Do you have enough resources?" he asked. "Are you prepared to - to have a number of your employees enveloped in this such that you can't do other things?"

And, as an elected official, Williams said a district attorney would at least be aware that their reputation would be tied to such a big case.

"I would imagine, a DA is looking over his or her shoulder and thinking about the election, because they're creatures of an election and, to some extent, they're creatures of popularity," he said. "So, I don't think you'd want to do something that was wildly popular or do something that - that might get you fired."

One additional area of difficulty would likely be finding an impartial jury for such a well-known figure on the topic of a well-publicized phone call.

"Well [to] find an unbiased jury can be tough," Williams said. "You ask, can you be fair and impartial? They say yes. And they believe they can be and they are being as truthful as they can be."

But, he said, there are cases where a person's actions may not match up with their own beliefs of being impartial.

"People will tell you, they can be fair and they believe they can be. But then, oftentimes, you look at the conduct and that's not what you find," Williams said. "You don't - you don't find fairness."

Regardless of the gravity of a Trump prosecution, Williams suggested the law should not look upon him any differently than anyone else facing such accusations - suggesting there should not be different justice for different people.

"There's not a referendum on you as a person, on your entire life, on your behavior," he said. "The question is simply if you, or anyone else, whether you have committed this offense."