President Donald Trump likely broke both federal and state law in a Saturday phone call during which he encouraged Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn the state’s election results. The president certainly committed an impeachable offense that is grounds for removing him from the office he will be vacating in less than three weeks or disqualifying him from future elected office. His tumultuous term will end as it began, with questions as to the legality of conduct connected to manipulating American elections, and a defense based squarely on the idea that Trump’s mind is so warped that he actually believes the nonsense he spews. Trump may never be put on trial for what he did, but a failure to prosecute him may lead to a further deterioration of American democracy.
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The Washington Post’s bombshell report and audio recording of a Saturday conversation among Trump; his chief of staff, Mark Meadows; Republican election attorney Cleta Mitchell; and Georgia election officials featured a litany of unproven and debunked claims of voter fraud in Georgia. Trump claimed he had actually won the state by hundreds of thousands of votes and suggested Raffensperger could face criminal liability for not going after this phantom fraud.
In the course of describing such fraud, Trump attempted fraud of his own, asking Raffensperger to engage in belated ballot box–stuffing to benefit him. (Never mind that Georgia certified its vote totals weeks ago and has submitted its Electoral College votes for counting by Congress on Wednesday.) Among the most damning things Trump said was the following:
It is more illegal for you than it is for [election officials] because, you know, what they did and you’re not reporting it. 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 [Germany], your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based on what I’ve heard. And they are removing machinery, and they’re moving it as fast as they can, both of which are criminal finds. And you can’t let it happen, and you are letting it happen. You know, I mean, I’m notifying you that you’re letting it happen. So look. 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.
Make no mistake: In that last sentence, Trump was asking Raffensperger to manufacture enough votes to overturn the results in Georgia based upon nothing but Trump’s false accusations of fraud and irregularities. In the previous passage, it sounded very much as though he was threatening Raffensperger with some sort of criminal offense if he did not do as Trump commanded. (No evidence has emerged that, in ensuring that Georgia’s election results were counted properly, Raffensperger has committed any crime.) This request is easily the kind of corrupt conduct that could serve as a “high crime and misdemeanor” subjecting him to removal from office, though with his departure imminent it seems unlikely that Congress would take up the case. The conduct, though, is much more egregious than the Ukraine threats that got Trump impeached one year ago, conduct that was also aimed at manipulating the election by pressuring Ukrainian officials to come up with fake dirt on Joe Biden. Trump, of course, also entered office under a cloud of suspicion over his campaign’s links to Russia and Vladimir Putin’s successful efforts to manipulate the 2016 election on his behalf. In the unlikely event that Congress were to make him the first president ever to be impeached twice—impeachments can happen even after elected officials leave office—then he could be disqualified from running for high office again in the future. It has been reported that, when not attempting to overturn the results of the 2020 election, Trump has been planning a possible third run for president in 2024.
Aside from being impeachable conduct, Trump’s actions likely violate federal and Georgia law. A federal statute makes it a crime when one “knowingly and willfully … 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.” A Georgia statute similarly provides that 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.”
For both statutes, the easy part for prosecutors would be proving that there was no basis in fact for Georgia election officials to flip the lead in Georgia to Trump by adding 11,780 votes to his totals, giving him one more vote than Biden’s margin of victory. The ballots in that state have been counted, and recounted both by hand and by machine, and Biden’s victory is certain. And as Raffensperger pointed out repeatedly on the call, every court that has investigated Trump’s fraud claims has found them to be completely spurious. Adding 11,780 votes to Trump’s column—or removing legal Biden ballots—would defraud Georgia voters of the actual outcome they chose. Counting fake ballots or removing lawful ones would deprive Georgia voters of a fair and impartially conducted election process. That is the definition of election fraud.
The hard part for prosecutors would be proving Trump’s state of mind, because the statutes require proof of knowledge and intent. Prosecutors would have to show that Trump knew that Biden fairly won the election, and Trump was asking for Georgia officials to commit election fraud. And it’s not clear prosecutors could make that case.
As with so many things in this presidency and president, the question is whether Trump is drinking his own Kool-Aid. Reading the entire one-hour, rambling call transcript, it is hard to know if Trump actually believes the fever swamp of debunked conspiracy theories about the election or whether he’s just using the false claims as a cover to get the political results he wants. It’s not much different than Trump’s statements denying Russian election hacking in 2016, his professed ignorance of the aims of QAnon and the Proud Boys, and his speculation about whether ingesting bleach can protect against the coronavirus. And during the Ukraine impeachment saga, of course, nearly every Republican senator voted to acquit the president on the implausible basis that Trump was merely asking Ukraine to legitimately investigate Joe Biden for possible criminal conduct rather than seeking to corruptly advance his own electoral interests. In all of these cases, Trump’s conspiratorial rantings display either profound ignorance, deep cynicism, or both.
Trump is the rare potential criminal defendant to have plausible deniability about whether he accepts truths as clear as gravity, making any prosecution difficult. Add onto that concerns of prosecutorial discretion for both the new Biden administration and Georgia officials, possible claims of legal immunity, a presidential self-pardon that could relieve Trump of liability under federal law, and other political hurdles, and a prosecution of Trump is unlikely.
Despite the long odds, I would hope at least Georgia prosecutors will consider going after Trump, or that the House of Representatives might impeach him again with the goal of disqualifying him from running in 2024. Lack of prosecution or investigation demonstrates that there’s little to deter the next would-be authoritarian—perhaps a more competent one—from trying to steal an election. Trump came a lot closer than he should have this time, and next time we may not be so lucky.
