From Reuters:
“Explainer:
Did Trump break the law by pressuring a Georgia election official to 'find'
votes?”
- President
Donald Trump may have broken a U.S. federal law and a Georgia law against
election tampering by pressuring the state’s top election official to “find”
enough votes to overturn his loss to President-elect Joe Biden in the state,
according to some legal experts. The experts also outlined a potential legal
defense for Trump and predicted that a prosecution of him arising from
Saturday’s telephone call with Georgia Secretary of State Brad Raffensperger, a
fellow Republican, would be unlikely. Trump told Raffensperger during the call:
“All I want to do is this: I just want to find 11,780 votes, which is one more
than we have,” according to a transcript of the call released by the Washington
Post on Sunday. The White House declined to comment on the call. Here is an
explanation of the potential legal violations by Trump, based on interviews
with five election and criminal law experts.
Which laws
may have been broken? Georgia has a state law against “criminal
solicitation to commit election fraud.” That law makes it illegal for a person
to intentionally solicit, request, command or otherwise attempt to cause
another person to engage in election fraud. A separate federal law makes
it illegal to attempt to “deprive or defraud” people of a “fair and impartially
conducted election process.” The legal experts interviewed by Reuters
said Trump may have violated one or both of these laws. The phone call
was a “flagrant federal criminal violation,” said Jessica Levinson, a professor
at Loyola Law School in California, adding that it appeared that Trump was
using threats to push Raffensperger to alter a legitimate vote count. Raffensperger
on Monday told ABC’s “Good Morning America” program that a criminal
investigation into Trump’s actions could be launched in the state by an
Atlanta-area prosecutor, Fulton County District Attorney Fani Willis. “Maybe
that’s the appropriate venue for it to go,” Raffensperger said. In a
statement on Monday, Willis said she found Trump’s call “disturbing” and
promised to “enforce the law without fear or favor” if the matter were to be
formally referred to her office for investigation. Raffensperger did not
immediately respond to a request for further comment. A key question is
whether Trump actually requested that Raffensperger fabricate votes or was just
offering his opinion on the results of the Nov. 3 election, said Georgia State
University law professor Anthony Michael Kreis. In a possible
prosecution, Trump likely would argue he was simply offering his genuine views
on the election and not making a demand, Kreis said. Trump told
Raffensperger: “We won the election and it’s not fair to take it away from us
like this, and it’s going to be very costly in many ways,” according to the
transcript. “I think you have to say that you’re going to re-examine it.” The
president also suggested that Raffensperger could face consequences if he did
not state publicly that there were thousands of shredded ballots, as the
president seized on an unfounded election fraud allegation. “That’s a
criminal offense,” Trump said. “And you can’t let that happen.”
The legal
experts said prosecutors could argue that Trump’s power as a sitting president,
combined with the vague threats of prosecution, amounted to him making an
unlawful demand of Raffensperger under the Georgia statute. Kreis said a
damaging piece of evidence against Trump was his request that Raffensperger
“find” a specific number of votes - just enough to put him ahead of Biden in
Georgia. This indicates Trump was trying to change the election’s outcome and
threatening Raffensperger if he did not help, Kreis added. “He is exerting his
power to browbeat the secretary of state into finding votes that were not
cast,” Kreis said. Biden defeated Trump in crucial election battleground states
including Georgia that the president had won in the 2016 election. “It is
illegal under both federal law and Georgia statutes to solicit the commission
of election fraud, and it is hard to interpret the president’s threatening call
demanding that election officials ‘find’ votes for him otherwise,” said Duke
University School of Law professor Lisa Kern Griffin, a former federal
prosecutor. “Reaching out in a back-channel call to a secretary of state to
attempt to have vote tallies changed outside of official channels, especially
after courts have rejected post-election challenges, raises serious questions
under federal and state law,” added Michael Morley, a Florida State University
professor of election law.
What might
Trump’s potential defense be? Criminal laws generally require a guilty
state of mind, or a deliberate intent to carry out a crime. If Trump were
prosecuted, he would likely argue that he genuinely believed the election was
rigged against him, said Justin Levitt, an election law professor at Loyola Law
School. “The only way in which the president did not commit felonies
under both Georgia and federal law is if he sincerely believes there are 11,780
legitimate Trump votes that have not yet been counted, despite three different
recounts,” Levitt said. This would enable him to argue he was not
“willfully and knowingly” trying to interfere with the election and did not
have the intent that the criminal statute requires, Kreis said.
What are the
chances of Trump being prosecuted? The experts expressed doubt that federal
charges would be brought against Trump, noting that Biden has said that a Trump
criminal trial would not be in the national interest and could further divide a
polarized country. Biden has not addressed Trump’s phone call since it was made
public. Bob Bauer, a senior Biden adviser, said in a statement that the
call captured “the whole, disgraceful story about Donald Trump’s assault on
American democracy.” The statement did not mention the possibility of
prosecution. Bauer did not respond to a request for comment on whether Trump
should be prosecuted. Biden is due to take office on Jan. 20, meaning
any decision on federal prosecution would be made by the incoming
administration after Trump leaves office.
Could Trump
avoid liability by pardoning himself? Trump in 2018 said he had “the
absolute right” to pardon himself as part of the presidential executive
clemency power. Legal experts have said it is unclear whether a president can
legally issue a self-pardon. No president has ever tried, so the courts have
not directly weighed in on the question. Presidential pardons apply only
to federal crimes, meaning Trump would still face potential liability under
Georgia law. The White House declined to comment on the possibility of a
self-pardon.
^ I think Trump
broke both the Federal and Georgian State Laws. With that said I don’t see him
facing any charges. People just want him to leave office on January 20th
and once that happens they want to forget him. ^
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