Should Fulton County prosecutors decide to advance a case against Donald Trump, a key factor they must prove is that the former president knew his conduct was unlawful as he sought to overturn the 2020 election results in Georgia.
But nearly a year after the leak of Trump’s phone call to Brad Raffensperger, in which he urged the secretary of state to “find” him the 11,780 votes to overcome President Joe Biden’s win here, legal observers are divided over how easy that task could be.
Some view that Jan. 2 conversation, as well as reports of other calls Trump placed to top Georgia officials in the preceding weeks, as indisputable evidence that the former president had the requisite criminal intent to be in violation of state laws barring election meddling. They wonder why it’s taking District Attorney Fani Willis so long to move forward with charging Trump 11 months after she launched a criminal investigation.
“The intent is in the words. The intent is in the goal, in the motive,” said Glenn Kirschner, a former federal prosecutor. “The unspoken subtext of his words when he says ‘just find me 11,780 votes’ is ‘I’m happy to win at all costs, including by stealing votes, cheating or lying to deprive Joe Biden of his win.’ That’s a crime caught on audiotape.”
Others argue that it will be difficult for prosecutors to meet the high legal standard for proving such intent in the courtroom.
“Whatever somebody may think about what was in the president’s head, there is a not unreasonable argument that the president believed a certain set of facts that were favorable to him about the outcome of the election,” said Brandon Bullard, an Atlanta-based appellate attorney and former public defender.
Neither Willis nor a spokesman for Trump returned requests for comment. Willis, a Democrat elected in Nov. 2020, previously said that politics played no role in her decision to launch the probe and that she does not have “any predetermined opinions” about whether a prosecution will occur.
“I take no pleasure in this, and that’s what I want people to understand,” the veteran prosecutor told The Atlanta Journal-Constitution in February.
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Credit: Curtis Compton / firstname.lastname@example.org
‘Softening the ground’
For a jury to convict a defendant of a crime, prosecutors must establish mens rea, a Latin term that means the person had a guilty mind, and do so with highest standard of proof: “beyond a reasonable doubt.”
By that standard, jurors must acquit if they believe there’s any other reasonable explanation for a defendant’s behavior beyond that presented by the prosecution.
Prosecutors, of course, can’t read minds, and rarely do defendants willingly admit they intended to commit crimes. So prosecutors demonstrate mens rea by assembling enough direct and circumstantial evidence for jurors to infer criminal intent.
If it opts to move forward with a case against Trump, the Fulton District Attorney’s office is expected to rely in no small part on audio from the Raffensperger call. Prosecutors can also stitch together information gleaned from interviews with relevant officials and documents uncovered in Georgia and by other investigations in New York City and on Capitol Hill. They could also highlight reports of phone calls Trump placed to Gov. Brian Kemp, Attorney General Chris Carr and then-Raffensperger aide Frances Watson in Dec. 2020 and anything else that could shed light on what Trump and his closest allies were saying and thinking before and after the vote count was certified.
Observers who believe that Willis should seek an indictment against Trump argue there’s a multitude of evidence already in the public domain that proves he knew he lost the election but put undue pressure on Georgia officials anyway.
For Kirschner, the examples begin months before the election, when Trump began casting doubt on the election system or suggesting, as he did in an August 2020 speech in Oshkosh, Wisconsin, that “the only way we’re going to lose this election is if this election is rigged.”
“He was softening the ground — criminally, in my estimation — for his future attempt to steal the election,” said Kirschner, a professor and legal analyst for NBC.
John Banzhaf III, a professor of public interest law at George Washington University, has in recent months submitted news reports to the Fulton DA’s office that he says demonstrate Trump was aware of his election loss and the lack of fraud.
Among the clips are an interview former Attorney General Bill Barr gave to the Atlantic in which he recounted telling Trump that the election results were accurate, to which the president responded that “you must hate Trump.” Banzhaf also flagged a report about Trump pressuring top Justice Department officials to declare the election was corrupt and “leave the rest to me and the (Republican) Congressmen.”
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Banzhaf, who filed a legal complaint about Trump’s call with the DA’s office, said there’s enough in the Raffensperger call alone to prove to a jury that there was criminal intent. Not only did Trump call one of the only people in Georgia who could possibly influence election results, Banzhaf said, but he made a repeated and precise ask.
“He didn’t call him up and say, ‘Gee Raffensperger, I really wish I could have gotten more votes down in your state,’” Banzhaf said. “He’s very specific about exactly what he wanted. He said ‘I want (11,780) votes so I can win.’ That to me was an indication that he intended to influence the election.”
‘A real stretch’
Other legal experts, especially those who specialize in criminal defense, believe there might not be enough proof to convict Trump under the “beyond a reasonable doubt” standard.
“Just the words themselves (in the Raffensperger call), I find it hard to believe that someone could indict or ever get a conviction, that that was supporting either perjury or obstruction of justice or election fraud,” said Don Samuel, a longtime criminal defense attorney whose high-profile clients have included football star Ray Lewis, the rapper T.I. and attorney Claud “Tex” McIver.
Politicians exaggerate, chest thump and make imprecise statements, he said. Proving Trump’s comments about the integrity of the election system in the lead up to November 2020 show a motive to commit a felony “to me is a real stretch,” Samuel added. “Politicians are constantly being dishonest about things and it’s not criminal.”
Much could come down to parsing what exactly Trump meant when he told Raffensperger to “find” him 11,780 votes, said Bullard, and whether a jury could be convinced it was him soliciting a crime — or something else.
“I don’t think you can put up just the (Raffensperger) phone call” before a jury, said Bullard. “Because the phone call could cut either way, and a good defense attorney will argue … that (Trump) believed in his heart of hearts there was fraud regardless of whether that’s true and that he wanted the local official who was responsible for ensuring the results were accurate to do his job.”
Andrew Fleischman, an Atlanta attorney and ex-public defender, said speaking to government officials about issues under their purview — even if what they’re asking for is wrong, false or without due process — is a protected form of political speech. He compared it to Trump devotees’ chants to “lock up” former Secretary of State and presidential candidate Hillary Clinton.
“I think (Trump’s) actually got a pretty strong First Amendment defense there,” Fleischman said.
Others disagree. Legal experts with the Brookings Institution, which recently pulled together a report concluding that Trump faced “substantial risk of possible state charges predicated on multiple crimes,” argued that speech integral to criminal conduct such as fighting words, threats and solicitations isn’t protected by the First Amendment.
Samuel noted Trump talked to Raffensperger while in the company of several of his attorneys.
“Obviously he’s strong-willed person, and I’m not sure he would have followed their advice anyways, but most people don’t commit crimes with a bunch of lawyers listening in,” he said.
A Trump spokesman previously referred to Willis’ inquiry as a politically motivated “witch hunt.”
Credit: Jenni Girtman
Credit: Jenni Girtman
Others argue that Trump shouldn’t be cut so much slack. Two recounts overseen by Republican officials reaffirmed that Biden won Georgia, and multiple lawsuits filed by the president’s allies were dismissed in court, the Brookings report notes.
“Trump was free to raise objections through the appropriate channels. He was not free to unilaterally decide he had won and then break the law based on that belief,” states the report, which does not weigh in on what should happen to Trump. The authors, which include former Obama ethics czar Norman Eisen and ex-DeKalb DA Gwen Keyes Fleming, strongly suggest that prosecutors can build a potent case against the former president.
Kirschner said not prosecuting Trump in the face of his actions “undermines the public’s faith in our rule of law.”
Others believe there are better ways for Willis to spend her time, namely clearing the backlog of 11,000 criminal cases that piled up during the pandemic.
“We are so far behind in Fulton County. There are so many people sitting in jail. So many victims who have not gotten justice yet,” said Samuel. “I think that discretion should be in favor of let’s do what we do well and catch up from the pandemic.”
THE STORY SO FAR:
- District Attorney Fani Willis is likely to impanel a rare special grand jury to support the probe. The move would give prosecutors a dedicated pool of jurors who wouldn’t be hearing other cases or rotated off after a standard two months. Such a body can subpoena witnesses and compel the production of documents but can’t issue indictments
- Fulton prosecutors are in communication with the select committee on Capitol Hill that’s investigating the January 6 insurrection to share relevant information and documents
- Prosecutors have interviewed at least four of Brad Raffensperger’s current or former aides. A Secretary of State spokesman would not confirm whether the Fulton DA’s office has interviewed Raffensperger, who recently released a book about his saga with Trump, “Integrity Counts”
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Credit: Jason Getz / Jason.Getz@ajc.com