President Donald Trump’s now-infamous phone call with Georgia’s Republican Secretary of State Brad Raffensperger may have exposed POTUS to criminal liability on both state and federal fronts. In the call, Trump repeatedly told Raffensperger that he needed to “find” 11,780 votes—giving him a win over President-elect Joe Biden in the Peach State, but not in the 2020 election.
First, let’s review what was said.
“You know what they did and you’re not reporting it,” Trump said, referring to a baseless accusation that illegally-cast ballots had been counted in the Peach State.
“That’s a criminal–that’s a criminal offense,” Trump continued, “And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.”
“And there’s nothing wrong with saying, you know, um, that you’ve recalculated,” Trump demanded.
The president also told Raffensperger that if he did not act by Tuesday, he would be harming the chances of Republicans David Perdue and Kelly Loeffler to maintain Republican control of the Senate in Georgia’s runoff elections.
Trump warned Raffensperger:
And because of what you’ve done to the president, a lot of people aren’t going out to vote and a lot of Republicans are going to vote negative because they hate what you did to the president. Okay? They hate it. And they’re going to vote. And you would be respected. Really respected, if this thing could be straightened out before the election. You have a big election coming up on Tuesday. And therefore I think that it is really important that you meet tomorrow and work out on these numbers.
The president’s behavior on the call, like so much connected to his administration, is an unprecedented attempt by a president to interfere with free and fair elections. It likely also constitutes criminal action under a multitude of existing statutes. Legal experts believe that there is a sufficient predicate to open investigations.
Certainly, however, prosecution for any of the crimes potentially committed during the call would be a difficult undertaking. Like many crimes of corruption, those related to election tampering require specific intent — the mens rea. Unless Trump were to admit that he intended to illegally interfere with election results, there would be no direct evidence about his state of mind. Other contextual evidence that would support the inference that Trump had illegal intent, for instance, would be Trump saying behind closed doors knowing and admitting that he had lost the election.
As we’ve discussed before, prosecutors will often present evidence of a defendant’s actions and argue that fact-finders can infer that defendant’s state of mind based on that contextual information. Here, the argument would be that a judge or jury must infer that Trump intended to falsify election results.
Such an inference might seem obvious to many, particularly given Trump’s shockingly complete refusal to accept defeat. Still, Trump’s state of mind would be an impediment to an prosecutor who needs to prove intent beyond a reasonable doubt.
Law&Crime has put together the following list of possible crimes that line up with Trump’s actions during the call. Each would require proof of Trump’s corrupt intent, and each would present similar difficulty in proving that particular element.
First, the Georgia state crimes — those for which Trump is powerless to issue a self-pardon.
Georgia has a specific criminal statute that applies to solicitation of election fraud, an offense that one Georgia election board member has already said should be investigated. It requires proof of intent:
(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.
(2) A person commits the offense of criminal solicitation to commit election fraud in the second degree when, with intent that another person engage in conduct constituting a misdemeanor under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.
(b) (1) A person convicted of the offense of criminal solicitation to commit election fraud in the first degree shall be punished by imprisonment for not less than one nor more than three years.
(2) A person convicted of the offense of criminal solicitation to commit election fraud in the second degree shall be punished as for a misdemeanor.
(c) It is no defense to a prosecution for criminal solicitation to commit election fraud that the person solicited could not be guilty of the crime solicited.
Solicitation of any crime (whether of the misdemeanor or felony variety) is simply the asking that another person commit some underlying crime. That asking, as is detailed in the statute above, can take a gentle form (such as a request), or a more aggressive form (like a command). Regardless of the method used, though, asking someone to commit a crime is itself a crime (so long as the person doing the asking has the intent the the crime actually occur).
In the context of the Trump phone call, several of the president’s statements to Raffensperger appear to indicate a request that Raffensperger break the law. The president repeatedly asked that Secretary Raffensperger “find” 11,780 votes in his favor, or “recalculate” legitimately cast votes. If Raffensperger were to manipulate votes this way, it would constitute a crime; therefore, Trump’s asking him to do so constitutes the crime of solicitation.
Of course, convicting Trump for criminal solicitation of election fraud would be no easy matter. A fact-finder would need to infer that Trump made his statements with the intent that Raffensperger break the law. Such an inference is certainly a reasonable one in this particular context, but inferring intent in a criminal case is never a sure thing.
It’s also worth noting that this is what’s known as an “inchoate offense”: criminal solicitation does not require that the crime solicited actually occur. Generally, if the person being solicited agrees to commit the crime, the solicitation becomes a conspiracy. If the crime were actually to take place, the solicitation would usually merge into the completed offense.
There are several Georgia statutes that prohibit tampering with election results. These are the crimes for which Trump’s requests could constitute criminal solicitation.
§ 21-2-596 makes it a misdemeanor offense for “Any public officer or any officer of a political party or body on whom a duty is laid by this chapter who willfully neglects or refuses to perform his or her duty […].” Trump arguably solicited Raffensperger to neglect or refuse to perform his duty under the law as Secretary of State, which brings us to our next point.
Several other Georgia statutes relate to the Secretary of State’s specific function in overseeing elections.
(a) If the Secretary of State or any employee of his or her office willfully refuses to permit the public inspection or copying, in accordance with this chapter, of any return, petition, certificate, paper, account, contract, report, or any other document or record in his or her custody, except when in use, or willfully removes any such document or record from his or her office during such period or permits the same to be removed, except pursuant to the direction of competent authority, the Secretary of State or employee of his or her office shall be guilty of a misdemeanor.
(b) If the Secretary of State or any employee of his or her office willfully destroys, alters, or permits to be destroyed or altered any document described in subsection (a) of this Code section during the period for which the same is required to be kept in his or her office, the Secretary of State or employee of his or her office shall be guilty of a felony.
Any person who intentionally interferes with, hinders, or delays or attempts to interfere with, hinder, or delay any other person in the performance of any act or duty authorized or imposed by this chapter shall be guilty of a misdemeanor.
Under Georgia law, the Secretary of State is required to oversee the tabulation of election results. Therefore, any attempt Trump made to interfere with Raffensperger’s legal duty would likely constitute solicitation of election fraud or interference with the secretary’s duties.
Professor Anthony Michael Kreis of the Georgia State University College of Law and Fordham Law Professor Jed Shugerman each said that Trump arguably broke state law on soliciting election fraud.
The most damaging part of the call is when Trump says that the Secretary of State should just say he “retabulated” the numbers. It reveals that he isn’t blowing off steam or sincerely seeking out the truth. His only demand is to have votes tossed or invented to fabricate a win.
— Anthony Michael Kreis (@AnthonyMKreis) January 3, 2021
Between that and “we need” the number of votes Biden won by plus one is just an astonishing demand. There’s no way to read this other than a blatant attempt to pressure Georgia officials to lie and alter legitimate election results with a wink and a nod to a looming consequence.
— Anthony Michael Kreis (@AnthonyMKreis) January 3, 2021
In addition to Georgia state crimes, Trump likely violated several federal statutes as well. There are several federal crimes in which the general public is deemed the victim. Americans are entitled to fair elections and honest public officials, free from corruption.
Most obviously, Trump’s behavior could constitute a violation of 52 USC § 20511, which makes it a criminal offense for anyone to interfere or attempt to interfere (intimidate, threaten, coerce, etc.) with the voting or election process. Again, the statute uses the words “knowingly and willfully.”
A person, including an election official, who in any election for Federal office
(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for
(A) registering to vote, or voting, or attempting to register or vote;
(B) urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or
(C) exercising any right under this chapter; or
(2) 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-
(A) the procurement or submission of voter registration applications 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; or
(B) 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, shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.
The president’s repeated urging that Raffensperger abandon Georgia’s accepted vote tallies in favor of “finding” an outcome that would serve Trump would seem to easily fall within subsection (C)(2) of this statute.
Lawyers tell me Trump broke a criminal law (52 USC §20511) — full stop. The phone call was a willful attempt to deprive voters of a fair election, they say.
— Jan Wolfe (@JanNWolfe) January 3, 2021
Again, intent (“knowingly and willfully”) looms large when trying to prove this election crime. Some legal experts have compared this to the “Trump Tower debate.” Still, Trump’s statements speak for themselves, and support the obvious inference that he intended to use his influence to ensure a Georgia victory. As former Inspector General Michael Bromwich argued, absent some unlikely contextual information to the contrary, Trump’s statements appear to violate federal law.
Unless there are portions of the tape that somehow negate criminal intent, “I just want to find 11,780 votes” and his threats against Raffensperger and his counsel violate 52 U.S. Code § 20511. His best defense would be insanity.https://t.co/ZAtRgiRQmz
— Michael R. Bromwich (@mrbromwich) January 3, 2021
There’s also a specific federal statute outlawing interference with reporting of votes.
52 U.S.C. § 10307(a) reads:
(a) Failure or refusal to permit casting or tabulation of vote
No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.
(b) Intimidation, threats, or coercion
No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 10302(a), 10305, 10306, or 10308(e) of this title or section 1973d or 1973g of title 42.
(c) False information in registering or voting; penalties
Whoever knowingly or willfully gives false information as to his name, address or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.
(d) Falsification or concealment of material facts or giving of false statements in matters within jurisdiction of examiners or hearing officers; penalties
Whoever, in any matter within the jurisdiction of an examiner or hearing officer knowingly and willfully falsifies or conceals a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(e) Voting more than once
(1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(2) The prohibition of this subsection applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.
(3) As used in this subsection, the term “votes more than once” does not include the casting of an additional ballot if all prior ballots of that voter were invalidated, nor does it include the voting in two jurisdictions under section 10502 of this title, to the extent two ballots are not cast for an election to the same candidacy or office.
Trump’s request that Raffensperger re-tabulate votes to ensure a Trump victory would clearly violate the sections of this statute if that re-tabulation were to include any misinformation.
As some experts have pointed out, there is also exposure for others on the call. Specifically, the participation of Trump lawyers and chief of staff Mark Meadows might well constitute a conspiracy with the president.
Attention has understandably been focused exclusively on Trump. If I were Meadows and the Trump lawyers on that call, I would be very worried about my own potential criminal liability. The call suggests they are members of a conspiracy to violate election law and defraud the US.
— Michael R. Bromwich (@mrbromwich) January 4, 2021
The federal criminal conspiracy law could fit. Here’s that statute:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
This statute makes it a crime for two or more persons to conspire to interfere with “the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Among those rights secured by the Constitution is the right to vote federal offices and the right to have one’s vote fairly counted.
President Trump’s attempts to overturn the results of Georgia’s presidential election is arguably aimed at depriving voters of their constitutional rights to vote.
Ethics watchdog group Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Acting Attorney General Jeffrey Rosen and Fulton County District Attorney Fani Willis on Monday. The letter explains:
“…because Section 241 applies to conspiracies to commit conduct affecting the integrity of the federal election process as a whole (and does not require fraudulent action with respect to any particular voter), President Trump’s threats, exhortations, and attempts to intimidate Secretary Raffensperger to use the power of his office to illegally change the result of the election fall within the scope of the statute. President Trump’s solicitation that Secretary Raffensperger use the power of his office to ‘find 11,780 votes’ to add to the total count – presumably, either by manufacturing new ballots or by changing or invalidating legally case ballots – would have resulted in the dilution of valid ballots, thus corrupting an honest vote tally and depriving the citizens of Georgia of their constitutional rights.”
CREW continued to urge that President Trump be prosecuted for his crimes, arguing that Trump’s “conduct is not only a gross abuse of power, but also represents clear violations of federal and state statutes designed to protect our elections from unscrupulous interference.”
Willis has already expressed an interest in investigating the president.
“Like many Americans, I have found the news reports about the President’s telephone call with the Georgia Secretary of State disturbing,” Willis said, noting that a member of the election board had already requested the Election Division of the secretary of state’s office open a probe. “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.”
Of course, any decision to prosecute President Trump for any potential crimes committed during the Raffensperger call would be a complex and political one that could rest primarily with the Biden administration, depending on how Georgia authorities handle the matter. As any seasoned law enforcement professional can attest, the commission of a crime and the prosecution of that crime are different things entirely.
As former Inspector General Bromwich and others have pointed out, Trump’s best defense could be insanity or ignorance. Should the president make a convincing showing that he was unable to form the requisite intent due to mental defect, he might find himself in possession of a potent legal defense. Similarly, the president could argue that he was coherent, but so uninformed as to reality that he lacked the knowledge necessary to render his requests improper. Prior to 2020 and 2021, it might have been difficult to imagine a sitting president making such arguments in his own defense, but here we are.
[image via Nicholas Kamm/AFP via Getty Images]
Have a tip we should know? [email protected]