WASHINGTON (NYTIMES) – The call by President Donald Trump on Saturday (Jan 2) to Georgia’s secretary of state raised the prospect that Trump might have violated laws that prohibit interference in federal or state elections, but lawyers said Sunday (Jan 3) that it would be difficult to pursue such a charge.
The recording of the conversation between Trump and Secretary of State Brad Raffensperger of Georgia, first reported by The Washington Post, led a number of election and criminal defence lawyers to conclude that by pressuring Raffensperger to “find” the votes he would need to reverse the election outcome in the state, Trump either broke the law or came close to it.
“It seems to me like what he did clearly violates Georgia statutes,” said Leigh Ann Webster, an Atlanta criminal defence lawyer, citing a state law that makes it illegal for anyone who “solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage” in election fraud.
At the federal level, anyone who “knowingly and willfully deprives, defrauds or attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process” is breaking the law.
Matthew T. Sanderson, a Republican election lawyer who has worked on several presidential campaigns – including those of Senator Rand Paul of Kentucky and Rick Perry, the former Texas governor – said that while it did appear that Trump was trying to intimidate Raffensperger, it was not clear that he violated the law.
That is because while Trump clearly implied that Raffensperger might suffer legal consequences if he did not find additional votes for the president in Georgia, Trump stopped short of saying he would deliver on the threat himself against Raffensperger and his legal counsel, Ryan Germany, Sanderson said.
“You know what they did and you’re not reporting it,” the president said during the call, referring to his baseless assertions of widespread election fraud. “That’s a criminal – that’s a criminal offence. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk.”
Lacking additional clear evidence of Trump’s intent to follow up on any apparent threat, including the potential criminal charges he suggested Raffensperger or his office might face, Sanderson said, “Ultimately, I doubt this is behaviour that would be prosecuted.”
Michael R. Bromwich, a former Justice Department inspector general and lawyer who represented clients that have been critical of Trump, said he believed Trump violated federal law.
But the meandering nature of the phone call and the fact that the president made no apparent attempt to conceal his actions as other call participants listened could allow Trump to argue that he did not intend to break the law or to argue that he did not know that a federal law existed apparently prohibiting his actions.
The federal law would also most likely require that Trump knew that he was pushing Raffensperger to fraudulently change the vote count, meaning prosecutors would have to prove that Trump knew he was lying in asserting that he was confident he had won the election in Georgia.
“It is unlikely federal prosecutors would bring such a case,” Bromwich said. “But it certainly was god-awful and unbelievable. But prosecuting a federal crime is obviously a very different thing.”
David Worley, a Democrat and a supporter of President-elect Joe Biden who is a member of the state Election Board in Georgia, wrote on Sunday evening to Raffensperger and other members of the board asking the secretary of state, who is the board chairman, to open an investigation into the phone call to see if it violated state law, including a provision prohibiting conspiracy to commit election fraud.
If the board concludes a law has been broken, Worley said, it could ask state law enforcement authorities to consider filing criminal charges or a civil case against Trump.
“To say that I am troubled by President Trump’s attempt to manipulate the votes of Georgians would be an understatement,” Worley, who is the sole Democrat on the five-member board, wrote in the email. “Once we have received your investigative report, it will be the board’s duty to determine whether probable cause exists to refer this matter.”
State officials in Georgia might also face a challenge in bringing a case against a federal official, or even a former federal official, said Webster and Ryan C. Locke, a second Atlanta criminal defence lawyer.
Trevor Potter, a Republican former chairman of the Federal Election Commission, said the question would largely be up to the Justice Department in the Biden administration.
“There is a good argument that Trump is seeking to procure a fraudulent vote count by stating that he needs exactly 11,780 votes and is threatening the secretary of state if he does not produce them,” Potter said. “But even if the Biden Justice Department thinks they have a good case, is that how they want to start off the Biden presidency? That is a policy decision.”
Congressional Democrats suggested they would examine the legal implications of the call. Representative Jerrold Nadler, the chairman of the House Judiciary Committee, said the call raised new legal questions for Trump even if it was not a clear violation of 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 in a statement.