This blog post started out as a YouTube video, here.
Today I am going to do a deep dive into Trump’s criminal liability in the Georgia matter. By “Georgia matter” I mean Trump’s phone call to Secretary of State Raffensperger after it was clear Trump lost the election in Georgia when he pressed Raffensperger to “find” the votes Trump needed to win.
First, I’ll talk about what makes a case like this difficult. Then I’ll talk about what can help the prosecution. Basically, I’m going to answer this question:
Several people were on Trump’s phone call with Raffensperger.
Headlines looked like this:
A few weeks after this phone call, the newly elected prosecutor in Fulton County, Georgia opened a criminal inquiry into such “attempts to influence” the Georgia election. Raffensperger is cooperating with the investigation.
Then, on September 17, two days ago, Trump sent a letter to Raffensperger asking him to check into “proven” voter fraud. You can see the letter here.
Part I: What makes this case hard.
For someone to be prosecuted, there has to be a specific statute on the books, and the prosecutor has to prove each element of the offense beyond a reasonable doubt. This is a high standard.
One question is whether Trump has violated Georgia Code § 21-2-604.
Under this statute:
On the face of it, Trump did just that.
Here’s why it’s not so easy. Trump is a master at muddying the waters and saying so many contradictory things that nothing can be pinned on him.
For example, during the phone call, he said this:
He also asked Raffensperger to “recalculate” the votes.
Now, if Trump genuinely believed he won the election, then asking Raffensperger to “find” legal votes, to simply recalculate, would not be a crime.
So, in his ramblings, Trump said things like this:
Yes, Trump hinted that Raffensperger could face criminal consequences, but the threat was vague. Trump said this:
So it was threat, but can also be read as Trump saying, “If you let people cheat, that’s criminal.”
See the problem?
This is exactly what mob bosses do. They are careful with what they say so nothing can be pinned on them. Ruth Ben Ghiat, in her book on strongmen, says this is exactly what people like Trump do.
Now let’s look at the letter Trump wrote this week. (You can read it here.) Trump opens by saying that large- scale voter fraud continues to be reported in Georgia. He tells Raffensperger that “people do not understand why you and Governor Brian Kemp adamantly refuse to acknowledge the now proven facts. . .”
He asks Raffensperger to begin the process of decertifying the election, and concludes by saying, “The truth must come out.”
On one hand, the letter helps the prosecution because there is no legal process by which the election can be “decertified.” Trump is therefore asking Raffensperger to do something illegal.
On the other hand, the letter could be read as Trump genuinely believing there was fraud, so he didn’t intend to ask Raffensperger to do anything illegal.
A jury’s job in this case is to resolve the factual issue: Did Trump intend to pressure Raffensperger into an illegal act?
I don’t think there is any doubt that Trump did try to pressure Raffensperger into declaring him the winner. Whether that can be proven beyond a reasonable doubt is first up the prosecutor, and then, if the prosecutor brings charges, it’s up to the jury.
Part II: What can help?
Intention can be proven with circumstantial evidence.
Georgia allows evidence of a person’s habit and practice to be used to prove intent. In other words, the prosecutor can enter evidence of Trump’s general habit and practice to prove what he intended during that specific call with Raffensperger.
Michael Cohen, Donald Trump’s longtime personal lawyer, testified under oath before Congress about how Trump signals the lies people are supposed to tell.
“Mr. Trump did not directly tell me to lie to Congress,” Cohen said. “That’s not how he operates.”
So, how does he operate? Michael Cohen offered a few examples. In one example, during the campaign, while Cohen was negotiating with Russia on Trump’s behalf (to build Trump Tower Moscow), Trump often asked Cohen how the negotiations were going. Other times Trump looked Cohen in the eye and said, “there’s no business in Russia.” Afterward, Trump went out and told the American people that he had no business in Russia. Cohen thus understood that “there’s no business in Russia” was the lie he was supposed to tell.
Andrew McCabe tells a similar story. After Trump fired Comey, Trump summoned McCabe to a meeting. Trump offered a “gleeful” description of what happened with the firing of Comey. McCabe knew it wasn’t true. He also knew Trump expected him to “adopt” this falsehood.
McCabe refused. He said, “No sir. That’s not true . . . ” He knew that he’d “given him the wrong answer.” McCabe knew he would lose his job because of his unwillingness to tell the lie that Trump wanted him to tell. Trump not only made sure McCabe was fired, he also made sure McCabe—after 21 years of service—would not receive his earned benefits.
And finally, the most well-known example of how Trump subtly (or not so subtly) using these oblique strong-arm tactics is when he told President Zelensky that he needed Zelensky to “do him a favor, though” by launching an investigation into the son of Trump’s political rival.
Zelensky got the message.
In fact, all of these recipients get the message.
But you can see that it’s still difficult to prove intent from the evidence that we have. It can be done, but, particularly in high profile cases, prosecutors like cases to be airtight.
And the investigation is still going on.
This week, the Fulton County district attorney told reporters:
In other words, she has her hands full, but this investigation is proceeding.
What are they doing?
According to recent reporting, they are quietly conducting interviews, collecting documents, and working to build a line of communication with congressional investigators as they aim to build a case against Trump for his attempts to overturn election results.
It should be obvious why they need to do this. Imagine charging Trump with a crime and then having the jury return an acquittal because the jurors have reasonable doubt. Not only would that embarrass the prosecution, but wouldn’t that vindicate Trump more than not being charged at all?
It’s important that prosecutors gather all the evidence they possibly can before deciding whether they can prove the charges beyond a reasonable doubt.
