Trump’s Georgia Call Raises New Prosecution Risk in Final Days
U.S. President Donald Trump departs the White House before boarding Marine One in Washington, D.C., U.S. (Photographer: Erin Scott/Bloomberg)

Trump’s Georgia Call Raises New Prosecution Risk in Final Days

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President Donald Trump’s phone call pressing Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” to reverse his defeat in the state may have ironically produced what Republicans have failed to put forth in dozens of lawsuits: smoking-gun evidence of election fraud.

That’s certainly how U.S. Representative Ted Lieu, a former military prosecutor, sees it. Noting that any conduct that “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud” residents of a fair election is a federal crime, the California Democrat on Monday called on FBI Director Christopher Wray to open a probe into Trump’s suggestion that Raffensperger “recalculate” the election tally.

“We believe Donald Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes,” Lieu said in a letter joined by fellow Democratic Representative Kathleen Rice of New York, former district attorney. “Mr. Trump, for purposes of a federal election, solicited Secretary of State Raffensperger to procure ballots that are known to be false.”

Trump’s Georgia Call Raises New Prosecution Risk in Final Days

While the request for a Trump appointee to investigate his boss during his last few weeks in office may be a long shot, the fiery reaction to the Saturday call is likely to add to the pressure Joe Biden‘s Justice Department will face to pursue a prosecution of the current president.

“I think in order to deter potentially authoritarian-oriented presidents and presidential candidates it would be important to prosecute activity like this because it really does undermine the very basic aspect of a democracy -- that we don’t stuff the ballot box,” said Richard Hasen, a law professor at the University of California Irvine.

The White House press office didn’t immediately respond to a request for comment.

Such a prosecution would cut against the stated desire of Biden and other Democrats to move on from Trump’s divisive term in office, and would be difficult to prove without clear evidence that the president knew he lost the election and wanted Georgia officials to overturn it anyway. Once Trump leaves office on Jan. 20, he will lose the immunity from federal criminal indictment that sitting presidents are granted under Justice Department policy, and an election-fraud probe will join an array of potential criminal cases that could theoretically be brought against him.

Norm Eisen, a lawyer for the nonprofit Voter Protection Program, said Trump’s words gave “more than enough” justification to open an investigation, particularly the president’s apparent threat to open a criminal probe into Raffensperger if he didn’t comply.

“The liability here is quite serious,” Eisen said in a call with reporters on Monday. “Federal law prohibits attempts to engage in election fraud. It provides criminal penalties for such attempts.”

State Investigation

Hasen pointed out that knowingly committing voter fraud is also a state crime in Georgia. Raffensperger said on Monday it was possible that state prosecutors could launch an investigation.

Trump’s call with Raffensperger came after weeks of failed efforts by Republicans to convince judges across the country that Democrats stole the election through a variety of illegal means. Dozens of suits by Trump and his supporters have been tossed by courts after they failed to produce evidence of a widespread scheme.

But a number of Congressional Republicans have cited those baseless claims in saying they will oppose certifying Biden’s victory on Wednesday, a previously routine step ahead of inauguration. Though their effort is doomed to fail, many have expressed fears that Trump’s GOP is moving away from democratic norms, concerns intensified by the call.

“It’s not okay or normal for anyone” including Trump “to call up an election official and ask them to change the result, and that’s exactly what happened,” Arizona Secretary of State Katie Hobbs, a Democrat whose state was one of several targeted by the GOP in lawsuits before and after the election, said on the call with Eisen. “I am astounded by this. Being upset with the election result does not justify this.”

Proving Intent

Hasen said a criminal case over the call could be complicated by difficulties proving that Trump “knowingly” committed election fraud, since the president may have evidence that he believes his own conspiracy claims.

Trump may be “so deluded into believing the nonsense he’s spouting, it would be impossible to prove he was knowingly making false statements about how much fraud there was in the Georgia election,” Hasen said.

The president raised many of the wilder voter-fraud conspiracy claims on his call with Raffensperger, suggesting that thousands of dead people had voted, ballots had been shredded or counted multiple times and that voting machines had been tampered with. Raffensperger who denied these claims as false.

Hasen said another possibility would be for Trump to be impeached again over the call. Several Democratic lawmakers including U.S. Representative Alexandria Ocasio-Cortez voiced support for such action on Monday. Though it might seem pointless to impeach a president leaving office in roughly two weeks, Hasen noted that a Senate conviction would prevent Trump, who has teased running for president in 2024, from ever holding federal office again.

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