Trump Call to Georgia Official Might Violate
State and Federal Law
The president’s demand for action to overturn the
result of the election in the state raised questions about whether he violated
election fraud statutes, lawyers said, though a charge is unlikely.
Eric Lipton
By Eric
Lipton
Jan. 3,
2021
Updated
10:21 p.m. ET
The call by
President Trump on Saturday to Georgia’s secretary of state raised the prospect
that Mr. Trump may have violated laws that prohibit interference in federal or
state elections, but lawyers said on Sunday that it would be difficult to
pursue such a charge.
The
recording of the conversation between Mr. Trump and Secretary of State Brad
Raffensperger of Georgia, first reported by The Washington Post, led a number
of election and criminal defense lawyers to conclude that by pressuring Mr.
Raffensperger to “find” the votes he would need to reverse the election outcome
in the state, Mr. 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 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.
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.
“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 offense. 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 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.”
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.”
David
Worley, a Democrat and a supporter of President-elect Joseph R. Biden Jr. who
is a member of the State Election Board in Georgia, wrote Sunday evening to Mr.
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, Mr. Worley said, it could ask state law
enforcement authorities to consider filing criminal charges or a civil case
against Mr. Trump.
“To say
that I am troubled by President Trump’s attempt to manipulate the votes of Georgians
would be an understatement,” Mr. 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 Ms. Webster and Ryan
C. Locke, a second Atlanta criminal defense 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,” Mr. 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, Democrat of New York and the chairman of the
House Judiciary Committee, said the call raised new legal questions for Mr.
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,” Mr. Nadler said in a statement.
Eric Lipton
is a Washington-based investigative reporter. A three-time winner of the
Pulitzer Prize, he previously worked at The Washington Post and The Hartford
Courant. @EricLiptonNYT
A version
of this article appears in print on Jan. 4, 2021, Section A, Page 16 of the New
York edition with the headline: Trump Call to Georgia Might Violate State and
Federal Law. Order Reprints | Today’s Paper | Subscribe
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