ATLANTA — The House select committee investigating the Jan. 6 attack on the U.S. Capitol is winding down, but the panel is handing Fulton County prosecutors something valuable before it disbands: key evidence about what former President Donald Trump and his top advisers knew as they pressed Georgia officials to overturn the state’s 2020 election results.
The information is crucial for establishing mens rea, the Latin term that refers to criminal intent, which is a prerequisite for securing criminal charges in court.
Legal experts interviewed by The Atlanta Journal-Constitution believe that during its nine public hearings, the select committee has presented evidence that could aid Fulton District Attorney Fani Willis should she decide to press charges.
“These hearings have been a boon for her prosecution,” said Norm Eisen, an attorney and ethics czar to former President Barack Obama who’s been closely following both investigations. “They’ve taken us into places that it might have taken her years to gain access to: the inner sanctum of the Oval Office ... the halls of the Department of Justice.”
He cited details presented by the committee regarding Trump’s ultimately abandoned push to appoint loyalist Jeffrey Clark as attorney general while he was fighting to overturn the election results. Clark had drafted a letter to Georgia officials that falsely stated the Justice Department had “identified significant concerns” about the election and urged for the governor to convene a special session of the state legislature to invalidate the election. The letter was never sent.
Other crucial information, according to legal observers, was sworn testimony from several former White House and campaign advisers — including Chairman of the Joint Chiefs of Staff Mark Milley and Cassidy Hutchinson, a former aide to then-White House chief of staff Mark Meadows — detailing conversations with Trump in which he privately acknowledged he had lost the election to Democrat Joe Biden.
Taken together, that information undermines a potential defense from Trump that he genuinely believed he was the winner of the election when he called Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021, and asked him to “find” nearly 12,000 votes — a central part of Willis’ investigation — said Brandon Bullard, an Atlanta-based appellate attorney.
“We really do now seem like we (have) an illegitimate goal that we are trying to accomplish by means both perhaps criminal and certainly less than above board,” said Bullard.
Georgia has been a major focus of the select committee as it has argued that Trump knew he lost the election but pursued claims of fraud anyway: pressuring elected officials; egging on his supporters to attack Congress as it certified the election results on Jan. 6; and then waiting for hours before intervening to stop the violence.
The panel has called a handful of Georgians as witnesses, among them Raffensperger and one of his top aides, Gabe Sterling; former Atlanta-based U.S. Attorney Byung “BJay” Pak; and Fulton County poll workers Wandrea “Shaye” Moss and her mother, Ruby Freeman.
All five officials have long been known to Willis’ office, which in addition to the Trump-Raffensperger phone call is examining Pak’s abrupt resignation under pressure and the campaign to coerce Freeman into falsely admitting she committed election fraud, among other incidents.
Three of the five most recent Fulton special grand jury petitions seeking testimony from out-of-state witnesses, including for former House Speaker and Georgia Congressman Newt Gingrich, cite evidence made public by the Jan. 6 committee.
Similarly, Atlanta attorney Randy Evans, a longtime adviser to Gingrich who served as Trump’s ambassador to Luxembourg, recently confirmed that he plans to testify before the grand jury after the election. Evans’ name had surfaced in connection with Gingrich as part of a select committee letter.
Eisen said the committee also likely helped Willis’ investigation by eliciting important testimony from witnesses whose names weren’t known even to most Washington insiders. Most prominently: Hutchinson, whose bombshell testimony before the panel this summer about what she saw and heard in the West Wing led some to compare her to John Dean, the former White House counsel whose testimony during the Senate’s Watergate hearings proved pivotal in connecting former President Richard Nixon to the cover-up.
“Would Fani Willis even know about the existence of Cassidy Hutchinson?” Eisen asked. “Apparently, the U.S. Department of Justice, according to the media, didn’t before she showed up.”
CNN reported earlier this month that Hutchinson is cooperating with Fulton prosecutors. Observers think she could shed more light on what officials like Trump and Meadows knew and when.
Spokesmen for Willis and the Jan. 6 committee declined to comment on how the two offices are working together. Congressman Jamie Raskin, D-Md., a member of the select committee, told reporters after the panel’s final hearing that “we’re cooperating with all other investigations.”
Anthony Michael Kreis, a Georgia State University law professor, said among the most significant evidence shaken loose by the committee are emails from attorney John Eastman, known as one of the architects of a plan to pressure Vice President Mike Pence to delay certification of Electoral College results. Eastman testified before the special grand jury in August, at times citing attorney-client privilege and pleading the Fifth Amendment against self-incrimination.
Eastman sued the Jan. 6 panel earlier this year to block the handover of his communications.
U.S. District Court Judge David Carter in California reviewed the disputed emails and determined that they potentially contained evidence of criminal behavior. He highlighted a sworn court document that Trump signed claiming more than 15,000 people had voted illegally in Fulton County. Trump’s own lawyers, Carter said, had told him beforehand that was inaccurate.
Kreis said Eastman’s emails amounted to “smoking gun evidence of an intent to solicit election fraud” regarding Trump’s eventual phone call to Raffensperger.
“We had a lot of circumstantial evidence before suggesting that the former president knew better,” he said. “But now we really have it in writing that he in fact knew that the allegations he was making about the state of the elections in Georgia were false.”
Shortly after the select committee’s final hearing, Trump released a 14-page letter to Chairman Bennie Thompson, D-Miss., doubling down on claims of widespread voter fraud in Georgia and other swing states and accusing the panel of overseeing a “witch hunt of the highest level.”
Should Willis opt to charge Trump, it will be up to a jury to decide if the prosecution has shown enough evidence of criminal intent “beyond a reasonable doubt.”
“The big question is whether there is a reasonable doubt that then-President Trump believed what he was saying,” Bullard said. “The difference now is that it will be much harder for that idea to traverse the evidentiary field unscathed.”
(Atlanta Journal-Constitution staff writer Tia Mitchell contributed to this report.)