Did Trump Break the Law in Call to Pressure Georgia Official to ‘Find’ Votes?

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A recording of President Trump pressuring Georgia secretary of State Brad Raffensperger to “find 11,780 votes” to overturn the election has placed the president under intense scrutiny in the waning days of his administration.

The call, obtained by the Washington Post, features Trump “floating a series of baseless claims of fraud as a pretext to have himself declared the winner,” as New York’s Jonathan Chait details. After putting forward conspiracy theories as evidence, Trump then asks Raffensperger and his general counsel, Ryan Germany, to “give me a break” and find enough votes to flip the state in his favor.

As with another phone conversation in which Trump pressured an official in Ukraine to do him “a favor” — a call that helped lead to his impeachment — Trump could face serious repercussions for the hour-long chat on Saturday. Already, it appears as if the legal and political ramifications could frustrate his remaining time in office (if not beyond) and complicate the Senate runoff in Georgia on Tuesday. Below is a roundup of the early fallout.

Senator Dick Durbin calls for a criminal investigation into Trump’s call

Hours after the Post published the hour-long phone call, Democratic Whip Dick Durbin described the recording as “more than a pathetic, rambling, delusional, rant. His disgraceful effort to intimidate an elected official into deliberately changing and misrepresenting the legally confirmed vote totals in his state strikes at the heart of our democracy and merits nothing less than a criminal investigation. The president is unhinged and dangerous.”

And as former federal prosecutor Elizabeth de la Vega notes, a potential investigation would need to determine “which other state officials he has pressured,” because Georgia’s electoral votes would not be enough to give him an Electoral College win. (Following his conversation with Raffensperger on Saturday, Trump reportedly got on a Zoom call with legislators from the other states that flipped to Biden — Arizona, Michigan, Pennsylvania, and Wisconsin — to discuss allegations of election fraud.)

Did Trump violate any state laws in the phone call?

Politico’s Kyle Cheney runs down the immediate legal concerns that the phone call raises:

Legal experts say the combination of Trump’s request to “find” a specific number of votes — just enough to put him ahead of Biden — and his veiled reference to criminal liability for Raffensperger and his aides could violate federal and state statutes aimed at guarding against the solicitation of election fraud. The potential violations of state law are particularly notable, given that they would fall outside the reach of a potential pardon by Trump or his successor …

… Georgia state law includes two provisions that criminalize “solicitation of election fraud” and “conspiracy to commit election fraud.” 

In an interview with Politico, Georgia State University law professor Anthony Michael Kreis also said that the “Georgia code says that anybody who solicits, requests or commands or otherwise attempts to encourage somebody to commit election fraud is guilty of solicitation of election fraud.”

“There’s just no way that if you read the code and the way the code is structured, and then you look at what the president of the United States requested, that he has not violated this law — the spirit of it for sure,” Kreis added.

On Sunday night, the only Democrat on the Georgia State Election Board called on Raffensperger to open an investigation into possible civil or criminal violations in relation to the phone call: “Such an incident, splashed as it is across every local and national news outlet, cannot be ignored or brushed aside by members of the SEB.”

Did Trump violate any federal laws in the call?

According to former Department of Justice inspector general and assistant U.S. Attorney Michael R. Bromwich tweeted that “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.” This federal statute criminalizes “the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.”

A potential key phrase: ‘It’s gonna be very costly’

At several points in the recording, Trump suggests to Raffensperger that he could be criminally liable if he does not overturn election results he considers fraudulent — though the votes have already been certified and subjected to two recounts. “That’s a criminal offense,” Trump said. “And you can’t let that happen.” Later he added, “It’s going to be very costly.” Responding to this suggestion by the president, Daniel Goldman — the lead counsel in the Trump impeachment inquiry in the House — tweeted that he had “charged extortion in mob cases with similar language” when he was an assistant U.S. Attorney at the Southern District of New York.

Representative Jerry Nadler, who prosecuted Trump’s impeachment, agreed that there may be criminal exposure: “In threatening these officials with vague ‘criminal’ consequences, and in encouraging them to ‘find’ additional votes and hire investigators who ‘want to find answers,’ the president may have also subjected himself to additional criminal liability.”

Could the call impact the Senate runoffs on Tuesday?

There have already been concerns that the president’s baseless allegations of a nonsecure election could limit Republican turnout in the Tuesday elections that will decide the control of the Senate. That Trump repeated the claim in the phone call suggests that he may stray from the party line when in Georgia on Monday to campaign for Republican candidates David Perdue and Kelly Loeffler. “You have a big election coming up,” Trump said in the call. “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.”

Democrats may also try to capitalize on Trump’s suggestion that no Georgian would want to return to the state after moving elsewhere. “You mean they moved out, and what, they missed it so much they wanted to move back in? [Laughter.] That’s crazy.”

Could Trump actually be prosecuted for the call?

Though House Democrats have said they will consider the legal implications of the president’s comments, the New York Times reports some of the complications that would come with federal prosecutions of a soon-to-be ex-president.

Former Federal Election Commission chairman Trevor Potter, a Republican, told the Times that “even if the Biden Justice Department thinks they have a good case,” it would end up being a “policy decision” if they chose to prosecute Trump for this action. Federal law also would require proof that Trump knew he was pressuring Raffensperger to fraudulently alter the election, a difficult prospect given the president’s nonstop statements that he was the rightful winner on November 3. The fact that Trump did not describe a plan to follow up on his threats could also frustrate prosecutors.

Did Trump Break the Law in His Georgia Election Phone Call?