Trump Likely Broke the Law in GA Call
Although prosecution and conviction are unlikely.
Via the NYT: Trump Call to Georgia Official Might Violate State and Federal Law.
“It seems to me like what he did clearly violates Georgia statutes,” said Leigh Ann Webster, an Atlanta criminal defense 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.
Law Professor Rich Hasen, writing for Slate, concurs that Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger.
Aside from being impeachable conduct, Trump’s actions likely violate federal and Georgia law. A federal statute makes it a crime when one “knowingly and willfully … attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by … the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” A Georgia statute similarly provides that a “person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”
Hasen, notes, however,
The hard part for prosecutors would be proving Trump’s state of mind, because the statutes require proof of knowledge and intent. Prosecutors would have to show that Trump knew that Biden fairly won the election, and Trump was asking for Georgia officials to commit election fraud. And it’s not clear prosecutors could make that case.
Trying to prove that Trump knows or understands anything would be quite the challenge. Indeed, I have seen supporters defend this clear attempt at subverting the election as Trump just saying what he believes.
Several attorneys interviews for the NYT piece linked above concur:
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 Mr. Trump was trying to intimidate Mr. Raffensperger, it was not clear that he violated the law.
[…]
Lacking additional clear evidence of Mr. Trump’s intent to follow up on any apparent threat, including the potential criminal charges he suggested Mr. Raffensperger or his office might face, Mr. Sanderson said, “Ultimately, I doubt this is behavior that would be prosecuted.”
And
Michael R. Bromwich, a former Justice Department inspector general and lawyer who represented clients that have been critical of Mr. Trump, said he believed Mr. 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 Mr. 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 Mr. Trump knew that he was pushing Mr. Raffensperger to fraudulently change the vote count, meaning prosecutors would have to prove that Mr. 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,” Mr. Bromwich said. “But it certainly was god awful and unbelievable. But prosecuting a federal crime is obviously a very different thing.”
Hasen argues that the long odds should not deter prosecutors if anything because of the seriousness of the offense. Likewise, he thinks Trump should be impeached and his right to hold further federal office should be taken away:
Despite the long odds, I would hope at least Georgia prosecutors will consider going after Trump, or that the House of Representatives might impeach him again with the goal of disqualifying from running in 2024. Lack of prosecution or investigation demonstrates that there’s little to deter the next would-be authoritarian—perhaps a more competent one—from trying to steal an election. Trump came a lot closer than he should have this time, and next time we may not be so lucky.
I concur with the sentiment. I actually do hope there is a prosecution, but I would not bet on it. Likewise, he should be impeached and barred from holding federal office, but I can’t see that Republicans in the Senate voting to convict, despite this blatant attempt to suborn voter fraud.
+1
Unfortunately, he’ll skate away again and it’s not likely that GA will prosecute either as it doesn’t appear that the SofS will make a referral to the AG. And it is too late to impeach, given he’ll be gone in 16 days.
Rain may have wet the ground in last night’s storm.
“I honestly thought it would miss the ground,” rain said. It’s not clear whether rain knows of the Law of Universal Gravitation, or of the Theory of General Relativity.
And then there’s the Judge Cameo Principle: Celebrities are above the law.
When something as egregious as this call happens, it’s hard not to start doing the “A Brilliant Mind” thing where one starts drawing all kinds of connections. So, on that note, I find it supremely odd that the Atlanta-based US Attorney unexpectedly stepped down *today* instead of his announced departure date of Jan. 20.
It’s so depressing that Trump will continue his lifelong pattern of escaping the consequences of his own actions.
@Sleeping Dog: Hasen argues, and I think he is correct, that he could be impeached after he leaves office. The purpose there would be barring him from running again.
If this was John Gotti it would be more than enough. Trump threatened Raffsenperger in an attempt to get him to commit a crime. Too many people, I think, are still refusing to see what is right before their eyes out of deference to the office or general pusillanimity. I don’t expect Georgia to prosecute, but it remains out there as a threat until the statute of limitations has passed. And the NY AG has made it very clear that she intends to prosecute.
Does Trump end up wearing an orange onesie? That I don’t know. But any time he is in NY he’ll face the possibility of arrest. Unless he works a pardon deal the US AG can potentially issue an arrest warrant. If Trump tries to self-pardon the US will almost certainly be forced to try the case just to settle that issue. And people are way too quick to write off the civil suits.
The important thing to remember is that the threat of prosecutions, federal, NY or GA don’t suddenly evaporate. They’ll have months, years, to decide whether to prosecute. That’s years of Trump living with that hanging over him, not just in the US or NY, but anywhere in the world that has extradition with the US.
We need to avoid going prematurely limp. He hasn’t gotten off yet.
Sadly, powerful enablers and political considerations will likely mean that Trump remains above the law as he has his entire criminal life. To hurt Trump, the best thing to do is hammer him with the fact he is a loser in every forum available. Hit him where it really hurts – diminish his following and end his grift. Smash his ego and destroy his brand, so he suffers in the ways that are the very worst for him.
Then, go after Meadows and the attorneys on the call, Mitchell and Hilbert, like there’s no tomorrow. They were all full participants in the solicitation and none of them have as plausible an out for ‘state of mind.’ Autocrats need supplicants, so strongly discourage anyone who might seek to back up the next Trump.
@Jen: Why would you find that odd?
I’m pretty sure his reasoning is: “I have 16 days in office, will not be able to get anything done, and I’m being handed a live hand-grenade.”
He can’t squash prosecution, since that could just be taken up in 16 days. He can’t see a prosecution through, and if he starts the machinery of a prosecution moving, he will pay the full political penalty with zero chance of the political reward.
This is definitely a situation where any sane person, regardless of their preferred outcome, would want to duck. Leaving early means he doesn’t even have to answer questions with things like “In accordance with the DOJ memo that says a sitting president cannot be prosecuted any decisions are moot at this time” or “in light of the fact that I will be vacating the office in two weeks, I leave this to my successor, who I have the utmost confidence in”.
And he is likely getting phone calls from higher ups to find a way to prosecute the Georgia SoS, which also doesn’t seem like fun. And risks getting in the spotlight and getting death threats for two weeks of work.
Short of taking the phone off the hook, locking his office door and playing Minecraft for a few weeks, this is by far the best choice.
@Scott F.:
This is where the action needs to be. Go after the hanger ons and apparachiks that have enabled Trump the last four years. Most organized crime cases start low and build the case for the big guys by breaking the little guys.
The Trumpkins are saying that the phone call was Trump giving Raffensperger one last chance to do the right thing before raining fire and fury down on Raffensperger’s head.
I’m not sure how arguing that he didn’t know the law existed would work for him. I’ve been told “ignorance of the law is no excuse” many, many times.
@Gustopher:
Well, in *this* administration I guess it isn’t.
The above isn’t normal! It just ISN’T!
@Steven L. Taylor: Also to remove the perks which former presidents have such as a pension, office space, staff, Secret Service protections, and to prevent any future aircraft carrier being named for him.
@Steven L. Taylor:
While I wouldn’t put money on it, it would be interesting if the House took up impeachment for the sole purpose of barring Trump from federal office and, depending on Trump’s trajectory after leaving office, the Senate might think a clean break to clear the decks for 2024 would be the best option.
@Steven L. Taylor:
Hadn’t read Hasen yet. But that is good to know. Somehow I don’t believe it will happen.
Also, saw that Kemp has attacked Raffensperger for releasing the tape. I find it doubtful that the GA AG will want to go into this hornet’s nest.
I’m going to go off on a philosophical tangent. I’ve always thought this sort of a thing is a huge flaw in the law generally. The idea is apparently to do justice by punishing evil, so we have to know the perp intended to do evil. But realistically the perps state of mind is unknown and unknowable. In management theory they say reward and punish actions, not attitudes or opinions.
As a consequentialist, deterrence is the only legal philosophy that makes any sense. You do the crime, you volunteer to be the example to deter others. While one might agree that someone who committed a crime more or less unintentionally, or under duress, or under mental debility, shouldn’t be harshly punished, but that’s a matter for the sentencing phase, not guilt determination.
I have several times seen libertarians say deterrence can’t work. But I’ve never seen anyone cite a source for that belief. IIRC Nozick, in Anarchy, State, and Utopia, says it’s impractical because it’s not possible to accurately calculate the correct punishment. But the the necessity for accurate determination flows from Nozick’s “Compensation Principle”. In the real world who cares if we over or under punish a little? And he seems to think his “dominant protective agency” would be capable of the greatest nicety in similar calculations. Saying precise calculation is impractical is not the same thing as saying others wouldn’t be deterred by some punishment. So a question for our libertarian commenters, where does this doctrine that deterrence can’t work come from? (And how does the “dominant protective agency” not turn into a protection racket?)
Coming back to the current case, shouldn’t we do everything we can to deter future presidents from acting like Trump, and future senators from acting like Ted Cruz?
Huh, and all this time I thought ignorance of the law was no excuse. Wish I’d known this before I pleaded guilty of possession of that kilo of smack.
Lot’s of talk, today, about Trump leaving for Scotland on the 19th.
America has a long history of supporting various authoritarian, often brutal, dictators in third-world countries, on the assumption that they were better than a Communist regime (I’d argue the assumption wasn’t entirely wrong, but that’s a digression). This is encapsulated by a statement attributed to FDR regarding Nicaragua’s Somoza “He may be a son of a bitch, but he’s our son of a bitch.”
And now that’s the GOP defense of Trump, even by those who don’t recognize it as such.
BTW, it’s also clear why el Cheeto Màs Pendejo hasn’t granted himself his much announced self-pardon: he’s not done committing crimes yet.
@OzarkHillbilly:
Who can possibly know what a kilo is?
You should have at least gone to a jury and tried for nullification, because of this One World Government Metric Thing.
This call is just exactly like the Ukraine/Zelensky call. A dumb wanna-be mob boss creating evidence against himself.
My only question, is how many other calls like this has he made, that we don’t know about? Do you REALLY think there are just the two?
No one can figure out why Hawley is taking part in this crazy coup conspiracy…maybe Trump called him?
No one, for the last four years, has been able to figure out what happened to Butters…maybe Trump called him?
Same with Cruz.
Maybe Trump just has better leverage against those guys???
@gVOR08:
Exactly. If there are no adverse consequences, people like the current crop of scum will continue to act this way. We have already seen that institutions and the plain truth aren’t enough to stop them and that their oaths are meaningless. Voting them out would work, except that they have now corrupted the mechanisms of democracy to the point where voting them out is not reliable. The last thing we need is to reinforce the belief that the law cannot or will not touch them.
I’m beginning to think that we need a law that reaffirms that elected officials and cabinet members speaking in public are understood to be under oath, so that outright lies are prosecutable as perjury.
@Daryl and his brother Darryl:
I really want Scotland to preemptively make it clear that he will not be allowed off the plane if does.
@Daryl and his brother Darryl:
@Daryl and his brother Darryl:
Lots of talk… yeah.
I’d be more interested how many countries won’t let him in, as an undesirable.
Scotland may not even let him in.
(I am a bad person. I was smiling a LOT while I wrote that.)
Since when is “didn’t know or believe it was wrong” (as opposed to “incapable of knowing it was wrong”) a defense?
How many of us could commit a crime and get away with that as an excuse? I can see, “didn’t intend to do the criminal action” being exculpatory (e.g., you ran out of a store with an unpaid purchase in hand, because your child darted out into the street, and in your haste to catch them you forgot to put the purchase down). But I can’t see, “The unpaid shirt I left with? The nice store clerk told me to try it on, so I thought she was giving it to me for free,” getting anyone out of trouble, even if the person sincerely believed that. If you intentionally committed the action, you’re responsible for it.
ETA: what Jay and Ozark said.
“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 Mr. Trump was trying to intimidate Mr. Raffensperger, it was not clear that he violated the law.”
It is clear that he violated the law, but a prosecutor might struggle to gain a criminal conviction due to the “knowingly and willfully” part needed, but the they only needs to show a preponderance of the evidence, a lower bar, to bring him to trial. After that, just present a case that he is weak and feckless, and then voila, he would have to take the stand and prove how smart and crafty he is. My hope anyways
Whomp on that dead horse! Beat him down good; that’ll show ’em!
@CSK: Yep. That’s the counter argument to “he’s threatening Raffensperger” all right.
@ImProPer:
There was a joke earlier in the Trump (regressive) era, to the effect that one goaded the Orange Moron by saying things like “But then, this might not be the work of Donald. No, it would take someone richer, smarter, more handsome, and with a much hotter daughter to pull off something like this.”
@Gustopher: Damn. My lawyers sucked. I guess one gets what one pays for.
At some point, willful ignorance is deliberate especially for someone who has the full array of lawyers from the US Department of Justice, and the White House Counsel Office plus several partners from white shoe firms on speed dial and an entire campaign apparatus that includes even more campaign finance and election law specialists than the FEC.
HE knows or should know.
It’s interesting how in the past 40 years, we’ve seen multiple presidents who seem to keep raising the stakes as to what crimes they should be impeached or prosecuted for…I wonder what a future president would actually have to do to be impeached and removed from office while president or convicted and punished for a crime after leaving the White House…
@Liberal Capitalist:
Just… he’s not going to leave. He’s not going to go be a Scotsman. He’s not going to go be a Russian. He’s not going to go be an Arab. He’s a NYC boy, and he may “retire” to Florida, but he’s not leaving select parts of the East Coast. For that matter, he’s not going to be the candidate in 2024 because a bunch of the others are going to find ways to sell, “He’s a NYC boy and he lied to you for four years.”
When I first saw this post I just saw “Trump Likely Broke” and missed the rest of the headline. I still think that applies – Trump is still doing A Lot of fundraising off this sedition and I really believe the Trump offspring are egging him on figuring this is a way to build up the inheritance.
@Michael Cain: That’s the worst part. As much as we want him to leave(and STFU), we’re stuck with him fomenting sedition and treason until the day he dies. And then the bannermen will pick up the flags, because the money’s too good not to.
S/He would start by being a Democrat. That might be sufficient.
@gVOR08:
From looking at reality. If punishment were a deterrent, our jails would be empty. Everyone knows that you go to jail if you get caught stealing–and yet people continue to steal.
In 2018, according to the CDC, there were 18,830 murders. Everyone knows that murder is wrong, and that you go to prison (and possibly the electric chair), but it still happened almost 19,000 times that year.
The problem with removing mens rea from the equation is that you open up the country to Chinese-style “rule by law” rather than “rule of law”. The average American, statistically, commits three felonies a day. That’s already being abused. If the requirement of intent is entirely removed, then there is no law–there is authoritarianism and abuse; You decide who you want punished, you pick a crime, and you’re set.
@Mu Yixiao:
In addition to all you just wrote there’s the fact that criminals are, by and large, stupid. A very substantial number are mentally ill or drug addicted, which does not aid in decision making. Quite a few are rage-o-holics entirely id-driven. Those who aren’t stupid, crazy are rage-driven, (ahem) are arrogant and convinced they’re too clever to get caught.
In my case I fundamentally misunderstood the realities. Yes, I was clever, yes I left no evidence behind, but the thing criminals don’t get is that it is not a game of fox and hounds, it is a game of tightrope walker and floor. Cops, in case that was too obscure, are the floor. Cops don’t have to chase you, they just have to wait, patiently, until that one wrong step trips you off the tightrope and there they are, waiting. The odds of getting caught on any given job are small, but the odds of eventually getting caught are pretty bad for the criminal.
Of course if you imagine that simply explaining the odds would deter many criminals I invite you to contemplate Las Vegas, a city built entirely on the backs of people who have all the odds clearly available.
Deterrence doesn’t work on the stupid, the addicted, the unhinged or the arrogant, and those categories account for 99% of criminals.
Aside from other state-of-mind questions, I don’t see how this is the case:
Surely his speech is prosecutable so long as his intention was to persuade the people on the other end to manufacture votes — he specifies a number he thinks he “needs”, and he even provides them an excuse for plauisible deniability, “You can say you recalculated”. Even if he sincerely believes Georgia was stolen from him — heck, even if it was and all the conspiracy theories are true — that’s not a legal excuse for attempting to “steal it back”.
The hour-long tirade isn’t him demanding that the Georgia people get to the bottom of some supposed crime, it’s a series of requests (combined with threats) to deliver him votes, which is distinct.
While I wouldn’t dream of arguing with Michael over the nature of criminals ;), I would point out that the kind of people he describes are the sort that would be least affected by the deterrence value of punishment for crime. I find it entirely likely that, if we were to stop punishing crime, we’d see a lot more.
The “Three Felonies a Day” thing is behind a paywall, so I can’t tell if the author is exaggerating, or engaging in a statistic that is somewhat misleading, because a few people do so much that’s potentially a felony, it drives the average way up. Median would be better. But that’s an op-ed piece, and hype is second nature to them. However, the pattern is a real danger.
@Jay L Gischer:
“Three Felonies a Day” is a book. And it’s an estimated statistic–because it’s really difficult to tell how many laws you’re breaking. It’s based on the voluminous and convoluted collection of statutes we have in the US.
Examples of things that are felonies: Picking up a feather from the “wrong” bird, traveling across state lines with your prescription medications in anything other than their original container, violating the TOS of a website, opening mail (including junk mail) that isn’t addressed to you, taking a sick day when you’re not sick, walking out of the post office with the pen they supply, failing to report every dollar you make to the IRS, etc.
There’s approximately 4,500 federal felonies on the books. That doesn’t include state felonies.
@Mu Yixiao:
If punishment weren’t a deterrent, the medicines you buy would all be useless and/or lethal.
Pretty clearly, the truth is somewhere between these extremes. Your argument is equivalent to “if vaccines prevented disease, no one would ever get the flu.” You have failed to grasp the difference between a deterrent and a prevention.
@Michael Reynolds:
You have the causation backwards. Those categories account for 99% of the criminals precisely because deterrence works on everyone else.
I’m reminded of the famous story from WW2, where bombers were coming back from missions all shot full of holes. The Army wanted to add armor in the places where there were holes. Abraham Wald, the legendary mathematician, convinced them to add armor in the places where there were zero holes — because the planes with holes there didn’t come back.
@Scott F.:
Not for nothing, but Mitchell had already gotten shoved out the back door of her law firm, by “resigning” her partnership, before Tuesday was done and over with. She barely survived 24 hours. I’m surprised she survived that long…