President Trump has gotten himself in trouble before with mob boss-style rantings around election season—like the call with the Ukrainian president that got him impeached a year ago.
But legal experts say Trump might have broken both federal and state criminal statutes in his already-infamous call with Georgia officials on Saturday night.
Trump hectored and berated Georgia Secretary of State Brad Raffensperger in an hourlong group call with lawyers and White House aides, pressuring the state official to find a way to reverse Trump’s election defeat. Trump incessantly repeated groundless conspiracy theories, railed about dead people voting, and switched between cajoling, begging, and threatening.
“I just want to find 11,780 votes,” Trump said, citing a figure one higher than his margin of defeat, in a recording first released by The Washington Post on Sunday evening. “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
The call, just a few days before the critical Georgia Senate runoff election, marks only the latest attempt by Trump to pressure local and national officials to flip his 2020 defeat into a victory. Indeed his supporters in Congress are still on board with that, as they plan to stage a (doomed to fail) objection Wednesday to the official congressional count of the Electoral College votes sealing Joe Biden’s victory.
Former Attorney General Eric Holder pointed to the federal criminal statute 52 USC 20511, which makes it a crime for anyone to knowingly attempt to defraud the residents of a state of a fair election by attempting to procure “ballots that are known by the person to be materially false.”
It’s the “knowingly” part that might make it hard to prosecute—that is, whether Trump actually knows his false election conspiracy theories are really nonsense, a point that’s been up for debate. For example, Trump’s niece, Mary Trump, recently told VICE News that she thinks her uncle appears to actually believe his own false narratives about the election.
“To me, it turns on whether he honestly and sincerely believed that there are 11,800 valid Trump ballots that somehow, despite two recounts and an audit, haven’t been counted yet,” said Justin Levitt, a law professor at Loyola Marymount University, told VICE News on Monday. “I think the two options are that he either broke the law or he cannot distinguish between fact and fiction in the information he receives. I’m not sure there’s a third choice.”
“His best defense would be insanity,” tweeted the well-known Washington defense lawyer Michael Bromwich. “The entire call is astonishing. The bullying, the threats, the insults, the credulous embrace of discredited conspiracy theories. Like a crime boss, Trump occasionally says that all he wants is the truth. But he doesn't—he wants the win. It's pathetic.”
“This was an attempt at extortion and election fraud, there’s no doubt about it,” Nick Akerman, a former member of the prosecution team during the Watergate scandal in the 1970s, told VICE News. “Trump’s threatening him. He’s trying to get him to come up with 11,800 votes out of wherever he can. He’s trying to get him to undo the vote in Georgia, and say, ‘Oh my goodness, we were wrong.’”
Trump is also widely expected to be gearing up to pardon himself of any and all federal crimes, or somehow finagle a way to let Vice President Mike Pence briefly accede to the presidency and hand him a pardon. And a presidential pardon would provide Trump with a powerful shield of protection against federal prosecution.
But Trump has no power to pardon away a state criminal charge. Trump is already facing investigations in New York State led by the Manhattan District Attorney Cy Vance and New York State Attorney General Letitia James. In other words, Trump may have just added one more state to his list of potential legal concerns: Georgia.
At least one local state official in Georgia called for Trump to be investigated for potentially violating state laws, including a statute barring conspiracy to commit election fraud.
David Worley, a local Georgia Democrat and member of the State Election Board, sent a letter Sunday night to other members of the board asking for an investigation of Trump’s call. Raffensperger is the board chairman.
“To say that I am troubled by President Trump's attempt to manipulate the votes of Georgians would be an understatement,” Worley wrote. “Among our responsibilities is to determine whether probable cause exists to refer potential civil and criminal violations of the Code to the Georgia Attorney General and local District Attorneys.”
Worley’s letter noted that Georgia’s Attorney General, Chris Carr, or Fulton District Attorney, Fani Willis, could also open their own investigations independently. Carr is a Republican and Willis is a Democrat.
“It seems to me like what he did clearly violates Georgia statutes,” Leigh Ann Webster, an Atlanta criminal defense lawyer, told The New York Times, citing a state law that makes it illegal to solicit election fraud.
In Washington, House Democrats howled with rage at Trump’s latest attempt to go outside the normal channels of elections and the law to secure a second term.
House Judiciary Chairman, Rep. Jerrold Nadler of New York, said Trump may have broken the law.
“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,” Nadler said Sunday evening in a statement.