President Donald Trump called Georgia’s top election official a child. He held out the prospect of criminal prosecution if Secretary of State Brad Raffensperger didn’t bend to his will. And he repeatedly implored Raffensperger to “find” 11,780 votes — one more than President-elect Joe Biden’s margin of victory in Georgia.
“So what are we going to do here, folks?” Trump asked Raffensperger and his aides during an hour-long telephone conversation on Saturday. “I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
But Trump’s wheedling and bluster, his flattery and menace appear to have violated Georgia law, some lawyers said Monday. A growing number of officials and two past presidents of the State Bar of Georgia also called for criminal investigations into the president’s effort to subvert the state’s election results.
Trump’s entreaties to Raffensperger, contained in a recording released Sunday, capped a tumultuous post-election period in which Georgia’s results have twice been recounted — and twice confirmed. Trump’s continued claims of widespread election fraud, repeatedly rejected by the courts, cast a pall over Tuesday’s runoff elections for Georgia’s two U.S. Senate seats.
But his unusual request of Raffensperger — in essence, to count votes that didn’t exist — crossed a new line.
“I would not have believed if I read this in a fiction novel that anybody would ever try anything this brazen,” Cathy Cox, a Democrat who was Georgia’s secretary of state from 1999 to 2007, said in an interview. “It is that stunningly improper.”
Cox, the dean of Mercer University’s law school, said it would be up to prosecutors to decide whether to file charges.
“There were certainly comments, threats, statements made by the president that a prosecutor could arguably find violated state or federal law,” Cox said. “That would not be a stretch.”
Other lawyers said Trump may have violated as many as three Georgia statutes: one concerning conspiracy to commit election fraud, another prohibiting solicitation to commit fraud, and another that prohibits interfering with the duties of an election official. The first two can be prosecuted as felonies, the third as a misdemeanor.
“Trump is basically asking Raffensperger to throw the election,” said Michael Jablonski, a former general counsel for the Georgia Democratic Party. “He’s asking him to change the result without any legal basis.
“I’ve never heard — after the election, after certification, after lawsuits — of somebody trying to tell an elected official responsible for elections to change the results,” Jablonski said.
However, other lawyers said prosecuting Trump, either for state or federal violations, would be difficult. He did not specifically threaten to retaliate against Raffensperger, a fellow Republican, other than to vaguely suggest criminal prosecution if he failed to act. And, perhaps most important, Trump didn’t get what he wanted: a reversal of Georgia’s results.
“The vitriolics and the blustering — I hate to say we’ve gotten used to it, but we’ve come to expect it,” said Atlanta lawyer Lee Parks, who has represented numerous Republicans in election-law cases. “I think you just take a deep breath. We’re sad it happened and embarrassed that it came from the president. But I don’t think there is civil or criminal liability.”
The secretary of state’s office often conducts criminal investigations into alleged violations of election law, which the State Election Board may refer to the state attorney general’s office or a district attorney for prosecution. But Raffensperger told ABC News on Monday it would be a conflict of interest for his office to investigate because he and his top aides participated in the call.
Regardless, a cascade of elected officials, mostly Democrats, and other leaders called for formal inquiries and other redress. Rep. Hank Johnson (D-Ga.), for instance, circulated a letter among his colleagues in Congress seeking support for censuring Trump, and two members of Congress asked the FBI to investigate.
In Georgia, two past presidents of the State Bar of Georgia sent letters to U.S. Attorney B.J. Pak and Fulton County’s new district attorney, Fani Willis, seeking investigations of possible violations of federal and state laws. Pak unexpectedly resigned Monday, citing “unforeseen circumstances.” Willis released a statement suggesting her office may look into the call. “Once the investigation is complete,” Willis said, “this matter, like all matters, will be handled by our office based on the facts and the law.”
The Georgia Bureau of Investigation has not been asked to examine the call, a spokeswoman said. And a spokesman for Georgia Attorney General Chris Carr sidestepped a question about a potential inquiry.
State Sen. Jen Jordan (D-Atlanta) urged Carr to open an investigation, citing a state law that gives him that authority “at any time.”
“You were elected to uphold the laws of the state that are currently under attack by the holder of the highest office in the land,” Jordan wrote. “This is not an issue of partisanship. Simply, I ask that you do your job and step forward to protect this state, its elections, and its elections officials.”
Trump’s chief of staff, Mark Meadows, set up the call with Raffensperger, who had no advance warning of what Trump would ask, according to an official familiar with the call. The official asked not to be named for fear of being targeted by Trump supporters who have threatened violence against those who challenged his assertions about election fraud.
Raffensperger’s staff recorded the call “just in case something was implied later,” the official said. “Trump has a history of that.”
The secretary of state’s office released the recording, initially to The Washington Post, on Sunday after Trump posted Tweets about the conversation, including disproven claims of fraud in Fulton County.
Some Republicans, including David Shafer, the state GOP chairman, criticized Raffensperger for recording the call, suggesting that doing so without Trump’s knowledge broke the law.
However, both state and federal law require only one party in a telephone conversation — in this case, Raffensperger — to be aware that the call is being recorded.
Shafer also claimed the telephone call should have been confidential because it was intended to settle litigation in which Trump has challenged Georgia’s election results. But the recording contains no such negotiations, and the call did not include lawyers for individuals Trump’s campaign has sued.
“I’m a defendant in those lawsuits,” said David Worley, a Democratic member of the election board. “But nobody asked me to participate in settlement discussions, and nobody asked my lawyer in the attorney general’s office to participate in settlement discussions.”
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