Trump’s Georgia Call Raises New Prosecution Risk in Final
Days
By Erik Larson
January 4, 2021, 10:24 PM GMT
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.”
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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