What a prosecutor could do about Trump’s phone call

January 4, 2021

By Ruth Marcus,

Beyond recoiling in horror at his crude efforts to corrupt our democracy, what should be done about President Trump’s phone call threatening Georgia Secretary of State Brad Raffensperger with “a big risk” of criminal liability if he failed to “recalculate” and find enough votes for Trump to win the state?

It would not be terribly difficult for an enterprising prosecutor, federal or state, to find a criminal statute that covers Trump’s conduct, although the loose talk about how Trump clearly committed a crime goes too far on too little information.

On the federal level, 52 U.S.C. § 20511 applies to anyone who “knowingly and willfully deprives, defrauds, or attempts to deprive and defraud the residents of a State of a fair and impartially conducted election process,” including procuring casting or tabulating ballots “that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.”

This provision, enacted in 1993 as part of a law designed to expand voting, was aimed primarily at fraudulent registration and voting, but it could apply in theory to the Trump situation.

The challenge for a prosecutor would be this, as explained in the Justice Department manual governing such prosecutions: “The use of the word ‘willfully’ in Section 20511(2) indicates that federal prosecutors must be prepared to prove that the offender was aware that he or she was doing something unlawful.”

There may be other criminal avenues — attempted extortion or conspiring to deprive Georgia voters of their civil rights. Yet these too may be a stretch and also require evidence of intent or pose other technical hurdles.

On the state level, Georgia law may be more directly on point. The state makes it a crime to solicit others to commit election fraud. But that also requires showing of “intent” that the person commit such fraud.

When Trump pushed Raffensperger to “find” just enough votes for him to win, did he know that would be fraud? Perhaps, but the tape also features Trump repeatedly asserting — with more bluster than basis — that he clearly won the state by hundreds of thousands.

As Harvard Law School professor Jeannie Suk Gersen observed in the New Yorker, “Trump’s troubling mental state and habitual mendacity may well have coalesced and crescendoed to erode any discernible boundary between falsehood and delusion.” Trump’s grandiose capacity for self-delusion may make him prosecution-proof.

Nonetheless, a state or federal prosecutor would have adequate justification — a “predicate,” in legal terms — to launch an investigation into Trump’s behavior. That could allow investigators to gather other evidence, outside the phone call itself, that would go to Trump’s intent. For example, Trump’s Saturday conversation with Raffensperger reportedly followed 18 previous attempts to broker a meeting. Who said what to whom as part of that process? What did Trump say to other officials in other states as he lobbied to prevent them from certifying the votes against him?

That said, there is a big gulf between having a basis for investigating and having enough to make the grave decision to seek a criminal indictment. The Justice Department’s Principles of Federal Prosecution require that the prosecutor believes that “the admissible evidence will probably be sufficient to obtain and sustain a conviction” — which in turn requires jurors to conclude that there is guilt beyond a reasonable doubt. In short, prosecutors aren’t supposed to bring losing cases.

So perhaps a criminal investigation could produce enough evidence to charge and prosecute Trump — emphasis on perhaps. That feels unlikely, and therefore unsatisfying: Any information that prosecutors collect in the course of such investigations would be protected, appropriately so, by laws preserving the secrecy of grand jury proceedings. The impulse to hold Trump accountable for his conduct is not only understandable, it is justified. The issue is the capacity of the criminal law to achieve that goal.

And this raises the more fundamental question: Which is more important, to punish Trump or to assemble the fullest possible record of his conduct — of his treachery, really? These may not be mutually exclusive goals, but they argue for, at least, a parallel inquiry — not criminal, but investigative.

Let Congress — the House, joined by the Senate, if it wishes — investigate and report back to the American people what their president did. This could be a select committee, along the lines of the Senate Watergate inquiry, or it could be conducted by an existing panel. And, really, if Republicans are so worked up over the need to reassure the country about the integrity of the election, why not have at it?

Let’s look at both: the evidence — or not — of the massive fraud that Trump and his cronies insist took place. And at Trump’s undemocratic, potentially unlawful, bid to undo the election results — about which there is now incontrovertible evidence, too serious to ignore.

Read more: Ruth Marcus: An alarmingly large cadre of co-conspirators is helping Trump’s assault on democracy Greg Sargent: A leading historian of U.S. democracy issues an urgent warning Jennifer Rubin: It’s impeachable. It’s likely illegal. It’s a coup. Max Boot: The tale of the tape: Trump’s own words reveal his corruption — again Eugene Robinson: Trump’s Fredo Corleone act is embarrassing and dangerous. But the end is near.

Source: WP