Trump’s pressure on Georgia election officials
raises legal questions
In audio from a Saturday phone call, the president is
heard urging the officials to reverse his loss.
President Donald Trump was heard saying: "There’s
nothing wrong with saying that, you know, um, that you’ve recalculated.”
By ALLIE
BICE, KYLE CHENEY, ANITA KUMAR and ZACH MONTELLARO
01/03/2021 04:08 PM EST
Updated:
01/03/2021 06:33 PM EST
https://www.politico.com/news/2021/01/03/trump-georgia-election-454122
President
Donald Trump’s effort to pressure Georgia officials to “find” enough votes to
overturn President-elect Joe Biden’s victory could run afoul of federal and
state criminal statutes, according to legal experts and lawmakers, who
expressed alarm at Trump’s effort to subvert democracy with less than three
weeks left in his term.
“We have
won the election in Georgia based on all of this. And there’s nothing wrong
with saying that, Brad,” Trump told Georgia Secretary of State Brad
Raffensperger on an hourlong Saturday phone call, according to a recording of
the conversation, which also included Chief of Staff Mark Meadows and legal
advisers to the president. “And the people of Georgia are angry. The people in
the country are angry. And there’s nothing wrong with saying that, you know,
um, that you’ve recalculated.”
POLITICO
has confirmed the recording, which was first obtained by The Washington Post
and The Atlanta Journal-Constitution. The leaked audio comes as Congress is set
to certify the Electoral College votes on Wednesday. At least 12 incoming and
current Republican senators, along with well over 100 Republican
representatives, have said they are going to challenge the results based on
unsupported allegations of voter fraud.
In the
audio, the president asked that officials find that ballots were shredded in
Fulton County and that Dominion election machinery was removed or tampered
with, in an effort to skew results. Ryan Germany, the secretary of state’s
general counsel, responded unequivocally in the phone call that machinery was
not moved or altered.
The
president also accused the officials of knowing about election interference but
not reporting it. “That’s a criminal offense,” Trump said. “And you can’t let
that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big
risk.”
Legal
experts say the combination of Trump’s request to “find” a specific number of
votes — just enough to put him ahead of Biden — and his veiled reference to
criminal liability for Raffensperger and his aides could violate federal and
state statutes aimed at guarding against the solicitation of election fraud.
The potential violations of state law are particularly notable, given that they
would fall outside the reach of a potential pardon by Trump or his successor.
On Capitol Hill, some Republicans expressed alarm about the call, while
Democrats indicated that they viewed it as a potential criminal offense.
“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,” said Rep. Jerry Nadler of New York, chair of the House
Judiciary Committee and one of the seven House Democrats who prosecuted Trump’s
impeachment last year for abuse of power.
Rep. Adam
Kinzinger of Illinois, who has become one of Trump’s loudest GOP critics in
Congress, called Trump’s call “absolutely appalling” and said it should serve
as a warning to the dozens of Republicans preparing to support his efforts to
overturn the election results this week.
Rep.
Sanford Bishop (D-Ga.) said: “It is the antithesis of what our democratic
process is, and sounds like it could be illegal.”
Rep. Adam
Schiff (D-Calif.), who led Trump’s impeachment trial for Democrats, described
the phone call as “among the most despicable abuses of power of his long list,
possibly criminal, morally repugnant, virulently undemocratic and dangerous to
our democracy.”
According
to the audio, Trump asked Raffensperger and his counsel Ryan Germany to find
11,780 votes, “which is one more than we have, because we won the state.”
“We won the
election, and it’s not fair to take it away from us like this,” he added. “And
it’s going to be very costly in many ways. And I think you have to say that
you’re going to reexamine it, and you can reexamine it, but reexamine it with
people that want to find answers, not people that don’t want to find answers.”
In the
audio, an often rambling Trump contradicted his own attorneys at several points
— and continued to push conspiracy theories that the election was somehow
stolen from him. “There’s no way I lost Georgia, there’s no way,” the president
said at one point during the call.
Trump was
joined on the call by Meadows — who at one point suggested “in the spirit of
cooperation and compromise," that the parties find a “path forward that’s
less litigious,” which was rejected by Raffensperger — and a couple of
attorneys, including Cleta Mitchell, a partner at the large firm Foley &
Lardner whose involvement in the Trump legal efforts to undermine the election
had gone unreported until the disclosure of the call.
He also
said Republicans could lose the pair of Senate runoffs in the state that will
be held on Tuesday, saying voters may not vote because of it.
Trump is
scheduled to visit the state on Monday for a rally in support of Republican
Sens. David Perdue and Kelly Loeffler, who are facing off against Democrats Jon
Ossoff and Raphael Warnock. Trump said during the call that he intended to air
his grievances during the rally, and said Raffensperger could cost Republicans
the seats.
“You have a
big election coming up,” Trump said. “Because of what you’ve done to the
president, a lot of people aren’t going out to vote. And a lot of Republicans
are going to vote negative, because they hate what you did to the president.”
Trump also
continued his attack on Georgia’s Republican governor, Brian Kemp, calling
himself a “schmuck” for previously supporting Kemp.
Even absent
Saturday’s call, Trump is facing increasingly acute legal exposure upon leaving
office. His company is the subject of two broadening investigations — one by
the Manhattan district attorney and one by the state of New York — for
potential financial crimes. Although Trump has openly considered the notion of
a self-pardon, such a move would not extend to state or local liability.
“I’ve
charged extortion in mob cases with similar language,” said Daniel Goldman, a
former prosecutor who helped lead the House Intelligence Committee’s
impeachment inquiry in 2019.
Georgia
state law includes two provisions that criminalize “solicitation of election
fraud” and “conspiracy to commit election fraud.” Trump’s detractors also
pointed to a federal statute that criminalizes “the procurement, casting, or
tabulation of ballots that are known by the person to be materially false,
fictitious, or fraudulent.”
Anthony
Michael Kreis, a Georgia State University law professor, said: “The Georgia
code says that anybody who solicits, requests or commands or otherwise attempts
to encourage somebody to commit election fraud is guilty of solicitation of
election fraud. ‘Soliciting or requesting’ is the key language. The president
asked, in no uncertain terms, the secretary of state to invent votes, to create
votes that were not there. Not only did he ask for that in terms of just
overturning the specific margin that Joe Biden won by, but then said we needed
one additional vote to secure victory in Georgia.”
“There’s
just no way that if you read the code and the way the code is structured, and
then you look at what the president of the United states requested, that he has
not violated this law — the spirit of it for sure,” Kreis continued.
Kreis added
that the phone call could not be divorced from recent episodes in which Trump
amplified a false conspiracy theory about Raffensperger’s family and his vows
to end the political careers of people like the secretary of state and Kemp for
upholding Biden’s victory in the election. He also said Trump’s request for a
specific number of votes — just enough to prevail by one — undercut the notion
that he was simply asking for the truth.
“If I’m the
president of the United States and my pardon power is not — does not extend to
state acts, I don’t think that in the last few days of my term that I would
want to be engaging in activities that even remotely subject me to the
possibility of state criminal prosecution,” Kreis said. “That’s what makes this
even more bewildering to me, is because if he had sensible advisers they would
just keep him off the phone.”
Ned Foley,
director of election law at the Moritz College of Law at Ohio State University,
said: “The character of what I heard on the call does raise the question
whether under federal law or state law it’s functionally equivalent of asking
someone to falsify election returns, which is presumably criminal in every
state in the country. He’s trying to pull every string or every lever or do
everything, including things that may be criminal, to the point of subverting
the result.”
The White
House and the Georgia secretary of state’s office did not respond to requests
for comment on Sunday.
The Biden
camp rebuked Trump over the call.
“We now
have irrefutable proof of a president pressuring and threatening an official of
his own party to get him to rescind a state’s lawful, certified vote count and
fabricate another in its place,” said Bob Bauer, a senior Biden adviser. “It
captures the whole, disgraceful story about Donald Trump’s assault on American
democracy.”
After the
phone call with Georgia officials, Trump phoned in to a Zoom call with
legislators from the battleground states of Arizona, Michigan, Pennsylvania and
Wisconsin late Saturday to talk about allegations of voter fraud in the
presidential election.
Also on the
call were Trump’s lawyer Rudy Giuliani, White House trade adviser Peter
Navarro, Justice Department official John Lott Jr. and Chapman University law
professor John Eastman, according to a person familiar with the call.
They
discussed efforts by both state legislators and members of Congress to try to
overturn the certified results for Biden, the person said.
The call
was organized by the group Got Freedom?, which says it’s fighting election
fraud and is planning to conduct a similar briefing for members of Congress.
Giuliani
did not respond to a request for comment on Sunday.
Navarro,
who wrote a report on the election, mentioned the call with legislators on a
Fox News appearance on Saturday night.
“We gave
them the receipts,” he said. “We explained exactly how the Democrat Party as a
matter of strategy stole this election from Donald J. Trump.”
Tyler Pager
and Zach Montellaro contributed to this report.
CORRECTION:
An earlier version of this article incorrectly described Anthony Michael Kreis‘
position. He teaches at Georgia State University.
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