Two members of the U.S. House of Representatives criminally referred President Donald Trump to the FBI on Monday morning over a recent conversation with Georgia’s Republican Secretary of State Brad Raffensperger.
Cataloguing a list of internet conspiracy theories and long-debunked rumors about the Georgia election in a more than hourlong conversation, Trump appeared to threaten his fellow Republican with criminal prosecution if he could not “find 11,780 votes”—one more than would lay his claim to having won the Peach State’s 16 electoral college votes.
“The people of Georgia are angry—the people in the country are angry,” Trump said. “And there’s nothing wrong with saying, you know, um, that you’ve recalculated.”
“Well, Mr. President, the challenge that you have is, the data you have is wrong,” Raffensperger replied.
Still, Trump persisted:
All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.
“As Members of Congress and former prosecutors, we believe Donald Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes,” Democratic Representatives Ted Lieu of California and Kathleen Rice of New York wrote in an open letter addressed to FBI Director Chris Wray. “We ask you to open an immediate criminal investigation into the president.”
The Washington Post‘s publication of the audio on Sunday immediately provoked outrage and accusations that the president violated both state and federal law.
Some legal experts, however, call the prospects of criminal prosecution a long shot.
University of Missouri Law Professor Frank Bowman told Law&Crime on Sunday that determining and then proving the lame duck president’s mental state would be a difficult chore for any prosecutor due to the fine line tread between what sounded like begging and extortion—a classic Trumpian combination that has served him well in the past—and a pattern documented throughout former special prosecutor Robert Mueller’s investigation into possible obstruction of justice.
University of Iowa Law Professor Andy Grewal went a bit further by insisting Trump lacked the mental state to commit a crime during the phone call because of his almost absolute ignorance of the law:
Sigh. Ignorance of the law is a defense to federal election crimes. Unclear to me why commentators can be so confident about Trump’s legal knowledge. https://t.co/SPYjiwo9qh
— Andy Grewal (@AndyGrewal) January 4, 2021
University of North Carolina Law Professor Carissa Byrne Hessick—a fulsome Trump critic—similarly pointed to the distinction between the reprehensible and the illegal:
Something can be completely immoral and entirely unacceptable and yet also not a crime.
— Carissa Byrne Hessick (@CBHessick) January 4, 2021
Others noted that legal and political norms also weigh against the likelihood of a former U.S. president being brought up on criminal charges:
From Watergate to Iran Contra, all the way up to the Iraq War, it’s clear that criminal law is not applied to presidents. Was only a matter of time until someone like Trump came along and pushed this to its limits
— Ken Klippenstein (@kenklippenstein) January 4, 2021
From Gerald Ford’s pardon of Richard Nixon to the present, there will be a strong temptation to look the other way—at least at the federal level. Former President Barack Obama reified this concept for the modern era in 2009, when he proclaimed he wanted to “look forward as opposed to looking backwards” on the question of his predecessor George W. Bush’s global apparatus of CIA torture. The Obama Department of Justice declined to prosecute anyone in connection with the program, claiming there was not enough evidence to bring a case—a proposition undermined by the Senate torture report whose publication his administration fought. Obama’s Justice Department also worked to secure immunity and impunity for CIA torturers at home and abroad.
President-elect Joe Biden has said he would not interfere with any Justice Department decision-making on Trump, and Lieu and Rice have been angling to buck that trend by publicly promoting the FBI referral in a thundering press release.
“The evidence of election fraud by Mr. Trump is now in broad daylight,” their statement says, rattling off language of their tenures as ex-prosecutors. “The prima facie elements of the above crimes have been met. Given the more than ample factual predicate, we are making a criminal referral to you to open an investigation into Mr. Trump.”
Lieu and Rice also cited various federal statutes and Georgia law when making their case to the FBI and broader public.
From that Monday morning shot across the bow:
Under 52 U.S.C. § 20511, it is a crime for, “A person, including an election official, who in any election for Federal office … knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by … the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” In this case Mr. Trump, for purposes of a federal election, solicited Secretary of State Raffensperger to procure ballots that are known to be false by threatening him to “find 11,780 votes.”
Under 52 U.S.C. § 10307(a), “No person acting under color of law shall … willfully fail or refuse to tabulate, count, and report such person’s vote.” During the phone conversation, Mr. Trump, under color of law, solicited Secretary of State Raffensperger to re-tabulate or “recalculate” the votes, which would have deprived Georgia voters of the accurate count of their votes.
Under Georgia Code § 21-2-604(a)(1), “A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.” Here, Mr. Trump solicited Secretary of State Reffensperger to engage in election fraud by requesting that he “find 11,780 votes” and “recalculate” legitimately cast votes and engage in a number of other fraudulent actions. We request that if you believe Mr. Trump also violated state criminal law, that you refer the state violations to the Georgia Attorney General or the appropriate district attorney in Georgia.
Not all legal commentators appear to agree that Trump’s criminal intent—known as the mens rea standard—cannot be proven in a call where Trump asks Raffensperger to deliver one more vote than he needs to win, or else.
“The lowest predicate for opening an FBI investigation is whether there is ‘information or an allegation’ that a person has violated federal law,” CNN analyst, lawyer, and former FBI special agent Asha Rangappa tweeted. “The higher standard is whether there are ‘specific articulable facts’ that a person has violated federal law. Both have been met here.”
But even Rangappa, a former Yale Law School dean, noted that Biden’s Justice Department might bend to a tradition of prosecutorial discretion criticized for protecting the powerful:
But the FBI is duty-bound to investigate violations of federal law if they have any basis to believe that a crime has occurred. they don't get to pick and choose. This was articulated in the Mueller Report, in explaining why they investigated obstruction 3/
— Asha Rangappa (@AshaRangappa_) January 4, 2021
Grewal maintained that scienter requirements would still prohibit much of anything being pursued against Trump due to the call, saying this situation was “basically the Trump Tower debate all over again”:
This is basically the Trump Tower debate all over again (“He had a lawyer with him!” “It was obviously illegal!”)
Glad to see that this time, some people are noticing how hard it is to establish a criminal violation under federal election law. https://t.co/4EKj303xqf
— Andy Grewal (@AndyGrewal) January 4, 2021
Notably, Fulton County District Attorney Fani Willis, a Democrat, telegraphed the possibility that her office would investigate the Trump-Raffensperger conversation as a crime.
“Like many Americans, I have found the news reports about the President’s telephone call with the Georgia Secretary of State disturbing. It is my understanding from news reports that a member of the State Election Board has requested that the Secretary’s Elections Division investigate the call, after which the Board can refer the case to my office and the state Attorney General,” the local prosecutor said in a statement on Monday. “As I promised Fulton County voters last year, as District Attorney, I will enforce the law without fear or favor. Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable. Once the investigation is complete, this matter, like all matters, will be handled by our office based on the facts and the law.”
[image via Stephen Lam/Getty Images]
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