Legal experts say Donald Trump should be prosecuted over Georgia phone call urging election ‘fraud’

Legal experts say Donald Trump should face prosecution over an explosive leaked phone call. But there’s a reason for him to breathe easy.

Legal experts in the United States have warned that President Donald Trump could face prosecution over his phone call with the top election official in Georgia on Saturday.

However, should they decide to pursue Mr Trump, prosecutors might struggle to prove one key element of the case against him.

Details of the hour-long phone call became public knowledge yesterday when The Washington Post published a transcript and full audio recording of its contents.

The President spoke to Georgia’s Republican Secretary of State Brad Raffensperger, and in the recording he is heard pressuring Mr Raffensperger to “find” enough votes to overturn president-elect Joe Biden’s 11,779-ballot margin of victory in the state.

“We have won this election in Georgia,” Mr Trump told Mr Raffensperger.

“And there’s nothing wrong with saying that, Brad.

“The people of Georgia are angry. The people of the country are angry. And there’s nothing wrong with saying that, you know, that um, you’ve recalculated.”

“Well, Mr President, the challenge that you have is that the data you have is wrong,” Mr Raffensperger responded.

That was one of several striking exchanges, which you can read about in greater detail here.

Professor Rick Hasen, an election law expert from the Irvine School of Law in California, broke down the legal ramifications of the call in an article published by Slate today.

He said Mr Trump had likely broken “both federal and state law” and also committed an impeachable offence – though as the President is leaving office in just over a fortnight, that last part isn’t going to matter much.

“Donald Trump should be prosecuted,” the article’s headline declared.

RELATED: Full details of Trump’s bombshell phone call

Donald Trump. Picture: Olivier Douliery/AFP

Prof Hasen pointed specifically to a couple of quotes from Mr Trump.

In the first one, the President appeared to issue a thinly veiled threat to Mr Raffensperger, accusing him of knowing about voter fraud and covering it up.

“It is more illegal for you than it is for (election workers), because you know what they did and you’re not reporting it. That’s a criminal – that’s a criminal offence. And you can’t let that happen. That’s a big risk to you and Ryan, your lawyer. That’s a big risk,” he said.

Mr Raffensperger’s general counsel, Ryan Germany, was also on the call.

In the second quote, Mr Trump said he wanted Mr Raffensperger to “find” 11,780 votes – his margin of defeat, plus one.

“All I want to do is this. I just want to find 11,780 votes,” he said.

In his analysis, Pro Hasen said: “Make no mistake. In that last sentence, Trump was asking Raffensperger to manufacture enough votes to overturn the results in Georgia based upon nothing but Trump’s false accusations of fraud and irregularities.

“In the previous passage, it sounded very much as though he were threatening Raffensperger with some sort of criminal offence if he did not do as Trump commanded.

“Aside from being impeachable conduct, Trump’s actions likely violate federal and Georgia law.”

He highlighted two statutes he believed Mr Trump had violated. You can read the federal one here and the state one here.

“A federal statute makes it a crime when one ‘knowingly and wilfully ... attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process, by ... the procurement, casting or tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent under the laws of the state,’” Prof Hasen said.

“A Georgia statute similarly provides that a ‘person commits the offence 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’.”

RELATED: Trump’s final plan to overturn his defeat

Georgia Secretary of State Brad Raffensperger.

This brings us to the problem prosecutors could face if they choose to go after Mr Trump under either of those statutes.

The federal one requires the perpetrator to “knowingly and wilfully” attempt to defraud the residents of a state, via methods “known by the person” to be fraudulent.

The state one requires “intent” to make another person – in this case Mr Raffensperger – engage in criminal conduct.

If Mr Trump did genuinely believe he beat Mr Biden in Georgia, and did genuinely believe the smorgasbord of claims and conspiracy theories he brought up during the call, then the case would likely fail.

“The hard part for prosecutors would be proving Trump’s state of mind, because the statutes require proof of knowledge and intent,” Prof Hasen said.

“Prosecutors would have to show that Trump knew that Biden fairly won the election, and Trump was asking for Georgia officials to commit election fraud. And it’s not clear prosecutors could make that case.

“Reading the entire one-hour, rambling call transcript, it is hard to know if Trump actually believes the fever swamp of debunked conspiracy theories about the election or whether he’s just using the false claims as a cover to get the political results he wants.

“Trump is the rare potential criminal defendant to have plausible deniability about whether he accepts truths as clear as gravity, making any prosecution difficult.”

Other prominent legal minds have been making the same point over the last 24 hours.

“It’s pretty appalling that the only question is whether the President is sufficiently detached from reality to deem that he hasn’t committed a crime,” Justin Levitt, an election law expert from the Loyola Law School, told CNBC.

Some are more certain that Mr Trump could be in serious jeopardy.

“Trump’s statement shows he knows what the law is, and he is doing precisely what it forbids – seeking to cause submission of false election results. And threatening folks to do that, to boot. Federal and state crimes,” said former federal prosecutor Andrew Weissman.

“The President asked, in no uncertain terms, the Secretary of State to invent votes, to create votes that were not there,” Prof Anthony Kreis, a law professor at Georgia State University, told Politico.

“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 – if you read the code and the way the code is structured, and then you look at what the President requested – that he has not violated this law. The spirit of it for sure.”

Between that and “we need” the number of votes Biden won by plus one is just an astonishing demand. There’s no way to read this other than a blatant attempt to pressure Georgia officials to lie and alter legitimate election results with a wink and a nod to a looming consequence.

— Anthony Michael Kreis (@AnthonyMKreis) January 3, 2021

“It’s gonna be costly to you.” I’ve charged extortion in mob cases with similar language. https://t.co/wB0jV9Mkhl

— Daniel Goldman (@danielsgoldman) January 3, 2021

Unless there are portions of the tape that somehow negate criminal intent, "I just want to find 11,780 votes" and his threats against Raffensperger and his counsel violate 52 U.S. Code § 20511. His best defense would be insanity.https://t.co/ZAtRgiRQmz

— Michael R. Bromwich (@mrbromwich) January 3, 2021

Look, he's either committed a felony in an attempt to subvert democracy or he actually believes the flat-earth conspiracy.

Those are the only two options.

And either way, an awful lot of enablers have delivered us all here.

— Justin Levitt (@_justinlevitt_) January 3, 2021

Meanwhile, Mr Raffensperger was interviewed on Good Morning America today.

“For the last two months we’ve been fighting the rumour whack-a-mole. And it was pretty obvious early on that we’d debunked every one of those theories that have been out there, but that President Trump continues to believe them,” he said.

“We have to follow the process, follow the law. Everything we have done for the last 12 months follows the constitution of the state of Georgia, follows the United States constitution, follows state law.”

Before the Secretary of State’s media appearance, it was reported that Mr Trump had tried to call him 18 times since the election.

Host George Stephanopoulos asked whether the pair had actually spoken before Saturday.

“No, I never believed it was appropriate to speak to the President,” Mr Raffensperger said.

“But he pushed out, I guess he had his staff push us, they wanted a call. The challenge that we have – first of all, we’re in litigation mode with the President’s team against the state of Georgia. And whenever you say anything, you have to have your advice there, they have to have their advice there, with lawyers.

“So I just preferred not to talk to someone while we’re in litigation. We let the lawyers handle it.”

Mr Raffensperger has been named as a defendant in a number of post-election lawsuits, including some from the Trump campaign. A fresh one was filed on New Year’s Eve.

So far, none of those lawsuits have gone anywhere.

“But we took the call. And we had a conversation,” Mr Raffensperger continued.

“He did most of the talking, we did most of the listening. But I did want to make my points, that the data he has is just plain wrong.

“He had hundreds and hundreds of people, he said, that were dead that voted. We found two. That’s an example of, just, he has bad data.”

"He has bad data."

Georgia Sec. of State Brad Raffensperger tells @GStephanopoulos that the data Pres. Trump cited to him throughout an hour-long phone call Saturday "is just plain wrong." https://t.co/EDzjgbqP7t pic.twitter.com/qguyHYLwLX

— ABC News (@ABC) January 4, 2021

Asked whether there would be an investigation into the phone call at state level, Mr Raffensperger sidestepped the issue, saying he had a “conflict of interest”.

“I understand the Fulton County District Attorney wants to look at it. Maybe that’s the appropriate venue for it to go,” he said.

Fulton is Georgia’s most populous county, and the subject of many of Mr Trump’s claims. Today its District Attorney Fani Willis released a statement calling the President’s behaviour “disturbing”.

“As I promised Fulton County voters last year, as District Attorney, I will enforce the law without fear or favour,” the statement said.

“Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable.”

Mr Trump is scheduled to appear at a political rally in Georgia this evening, local time. He will be campaigning on behalf of two Republican Senate candidates, David Perdue and Kelly Loeffler.

One of them, Mr Perdue, went after Mr Raffensperger on Fox News earlier today.

“To have a statewide elected official, regardless of party, tape without disclosing a conversation – private conversation – with the President of the United States, then leaking it to the press, is disgusting,” he said.