The Definitive Legal Analysis on Whether Trump Committed Crimes During Phone Call with Georgia’s Secretary of State

President Donald Trump’s now-infamous phone call with Georgia’s Republican Secretary of State Brad Raffensperger may have exposed POTUS to criminal liability on both state and federal fronts. In the call, Trump repeatedly told Raffensperger that he needed to “find” 11,780 votes—giving him a win over President-elect Joe Biden  in the Peach State, but not in the 2020 election. First, let’s review what was said. “You know what they did and you’re not reporting it,” Trump said, referring to a baseless accusation that illegally-cast ballots had been counted in the Peach State. “That’s a criminal–that’s a criminal offense,” Trump continued, “And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.” “And there’s nothing wrong with saying, you know, um, that you’ve recalculated,” Trump demanded. The president also told Raffensperger that if he did not act by Tuesday, he would be harming the chances of Republicans David Perdue  and Kelly Loeffler  to maintain Republican control of the Senate in Georgia’s runoff elections. Trump warned Raffensperger: And 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. Okay? They hate it. And they’re going to vote. And you would be respected. Really respected, if this thing could be straightened out before the election. You have a big election coming up on Tuesday. And therefore I think that it is really important that you meet tomorrow and work out on these numbers. The president’s behavior on the call, like so much connected to his administration, is an unprecedented attempt by a president to interfere with free and fair elections. It likely also constitutes criminal action under a multitude of existing statutes. Legal experts believe that there is a sufficient predicate to open investigations. Certainly, however, prosecution for any of the crimes potentially committed during the call would be a difficult undertaking. Like many crimes of corruption, those related to election tampering require specific intent —  the mens rea. Unless Trump were to admit that he intended to illegally interfere with election results, there would be no direct evidence about his state of mind. Other contextual evidence that would support the inference that Trump had illegal intent, for instance, would be Trump saying behind closed doors knowing and admitting that he had lost the election. As we’ve discussed before , prosecutors will often present evidence of a defendant’s actions and argue that fact-finders can infer that defendant’s state of mind based on that contextual information. Here, the argument would be that a judge or jury must infer that Trump intended to falsify election results. Such an inference might seem obvious to many, particularly given Trump’s shockingly complete refusal to accept defeat. Still, Trump’s state of mind would be an impediment to an prosecutor who needs to prove intent beyond a reasonable doubt. Law&Crime has put together the following list of possible crimes that line up with Trump’s actions during the call. Each would require proof of Trump’s corrupt intent, and each would present similar difficulty in proving that particular element. First, the Georgia state crimes — those for which Trump is powerless to issue a self-pardon. § 21-2-604: Criminal solicitation to commit election fraud Georgia has a specific criminal statute that applies to solicitation of election fraud, an offense that one Georgia election board member has already said should be investigated . It requires proof of intent: (a) (1) 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. (2) A person commits the offense of criminal solicitation to commit election fraud in the second degree when, with intent that another person engage in conduct constituting a misdemeanor under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct. (b) (1) A person convicted of the offense of criminal solicitation to commit election fraud in the first degree shall be punished by imprisonment for not less than one nor more than three years. (2) A person convicted of the offense of criminal solicitation to commit election fraud in the second degree shall be punished as for a misdemeanor. (c) It is no defense to a prosecution for criminal solicitation to commit election fraud that the person solicited could not be guilty of the crime solicited. Solicitation of any crime (whether of the misdemeanor or felony variety) is simply the asking that another person commit some underlying crime. That asking, as is detailed in the statute above, can take a gentle form (such as a request), or a more aggressive form (like a command). Regardless of the method used, though, asking someone to commit a crime is itself a crime (so long as the person doing the asking has the intent the the crime actually occur). In the context of the Trump phone call, several of the president’s statements to Raffensperger appear to indicate a request that Raffensperger break the law. The president repeatedly asked that Secretary Raffensperger “find” 11,780 votes in his favor, or “recalculate” legitimately cast votes. If Raffensperger were to manipulate votes this way, it would constitute a crime; therefore, Trump’s asking him to do so constitutes the crime of solicitation. Of course, convicting Trump for criminal solicitation of election fraud would be no easy matter. A fact-finder would need to infer that Trump made his statements with the intent that Raffensperger break the law. Such an inference is certainly a reasonable one in this particular context, but inferring intent in a criminal case is never a sure thing. It’s also worth noting that this is what’s known as an “inchoate offense”: criminal solicitation does not require that the crime solicited actually occur. Generally, if the person being solicited agrees to commit the crime, the solicitation becomes a conspiracy. If the crime were actually to take place, the solicitation would usually merge into the completed offense. There are several Georgia statutes that prohibit tampering with election results. These are the crimes for which Trump’s requests could constitute criminal solicitation. § 21-2-596 makes it a misdemeanor offense for “Any public officer or any officer of a political party or body on whom a duty is laid by this chapter who willfully neglects or refuses to perform his or her duty […].” Trump arguably solicited Raffensperger to neglect or refuse to perform his duty under the law as Secretary of State, which brings us to our next point. Several other Georgia statutes relate to the Secretary of State’s specific function in overseeing elections. § 21-2-586: Refusal by Secretary of State or his or her employee to permit public inspection of documents; removal, destruction, or alteration of documents (a) If the Secretary of State or any employee of his or her office willfully refuses to permit the public inspection or copying, in accordance with this chapter, of any return, petition, certificate, paper, account, contract, report, or any other document or record in his or her custody, except when in use, or willfully removes any such document or record from his or her office during such period or permits the same to be removed, except pursuant to the direction of competent authority, the Secretary of State or employee of his or her office shall be guilty of a misdemeanor. (b) If the Secretary of State or any employee of his or her office willfully destroys, alters, or permits to be destroyed or altered any document described in subsection (a) of this Code section during the period for which the same is required to be kept in his or her office, the Secretary of State or employee of his or her office shall be guilty of a felony. § 21-2-597: Intentional interference with performance of election duties Any person who intentionally interferes with, hinders, or delays or attempts to interfere with, hinder, or delay any other person in the performance of any act or duty authorized or imposed by this chapter shall be guilty
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