What are the legal ramifications of President Donald Trump‘s phone call with Georgia Secretary of State Brad Raffensperger (R)? The audio immediately became controversial upon its publication on Sunday by The Washington Post. Former federal prosecutor Renato Mariotti said that it seemed like POTUS was pressuring the official to commit fraud, but this would have been difficult to prosecute.
“It sure sounds like Trump was pushing the Georgia Secretary of State to commit fraud,” he wrote on Twitter. “What the hell was his lawyer doing on this call? Did she approve of this? Trump’s statements were vague enough that they would be hard to prosecute, but they’re obviously highly problematic.”
Bradley P. Moss, a national security lawyer, minced no words.
This recording shows the president demanding state officials effectively commit election fraud to find a way to recalculate the vote in a way that gives him a win, and threatening them with criminal charges if they refuse.
I’m so sick of this shit. https://t.co/ntMNOpMvWG
— Bradley P. Moss (@BradMossEsq) January 3, 2021
“The people of Georgia are angry,” POTUS said in audio obtained by The Washington Post. “The people in the country are angry. And there’s nothing wrong with saying that you’ve recalculated.”
He asserted he won the state of Georgia, and he repeated baseless conspiracy theories regarding widespread voter fraud as well as sabotage.
“All I want to do is this,” Trump said on the audio. “I just want to find 11,780 votes, which is one more than we have. Because we won the state.”
Raffensperger and his general counsel Ryan Germany defended the integrity of the election results in their state. Trump said they were leaving themselves open to criminal prosecution, but he did not seem to indicate who would bring this case.
“You know what they did and you’re not reporting it,” Trump said. “That’s a criminal–that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.”
“This is the way that people in organized crime rings talk,” @neal_katyal says of President Trump’s language in his call trying to pressure Georgia’s secretary of state to overturn the election results. pic.twitter.com/bnmxYY38as
— MSNBC (@MSNBC) January 3, 2021
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
Moss jumped into some of the online discussion on what kind of crimes that may be relevant this phone call, highlighting a law that prohibits people in federal “administrative” positions from interfering in presidential elections. Law Professor Jennifer Taub, of Western New England University, noted parallels between this call and the phone call that got Trump impeached.
18 USC 595 arguably applies as well. https://t.co/XqNCSADK0n
— Bradley P. Moss (@BradMossEsq) January 3, 2021
The president is literally threatening to prosecute the Georgia Secretary of State and his lawyer unless they lie about election results. That’s coup pro quo.
ICYMI @JasonLeopold. This is his way of “directing” someone to do something. But in this case he’s meeting resistance.
— Jennifer Taub (@jentaub) January 3, 2021
But as Mariotti said, showing illegality would be a tall order. Professor Frank Bowman, of the University of Missouri School of Law, had a similar take. Though he described the Trump call as brazen in a tweet, he told Law&Crime in an interview on Sunday afternoon that it could be difficult to prosecute the president.
Little shocks me anymore. But the brazenness of Trump on this call – plus active participation of his lawyers – leaves me speechless. Pray for Biden in WH on 1/20. We are far closer to dictatorship than we imagined.
— Frank Bowman (@FOBowman3) January 3, 2021
He said the call was “certainly impeachable,” though this would not happen as a practical matter since Trump is leaving office. Bowman said that the real problem with trying to do anything criminally with this call is demonstrating the president’s mental state, depending on what hypothetical charge is presented. He said while it sounds like a classic mob boss shakedown, Trump walks very carefully down the line between extortion and pleading. Perhaps the president believes he really was trying to protect the election. Perhaps Trump really believes the conspiracy theories.
“That could be true,” Bowman said, clarifying that Trump may have convinced himself he could not have lost. “How are you going to prove he doesn’t believe that?”
There’s also this:
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
[Image via Tasos Katopodis/Getty Images]
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