Trump Transcript: Legal Or Illegal?

On January 6, 2021, then-President Donald Trump pressured Georgia Secretary of State Brad Raffensperger to find enough votes to overturn his loss to President-elect Joe Biden in the state. Legal experts debated whether Trump broke the law with this action, citing potential violations of federal and state laws against election tampering and criminal solicitation to commit election fraud. The House Jan. 6 committee ultimately referred Trump to the Justice Department for prosecution on four separate charges, including obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and inciting or aiding an insurrection. While the committee's referrals carry no legal weight, the Justice Department is conducting its own investigation, and Trump's actions have sparked debate about the nebulous nature of rules and the potential consequences for breaking them.

Trump violated the Impoundment Control Act

On the day House managers transmitted two articles of impeachment to the Senate, the nonpartisan public auditor, Government Accountability Office (GAO), reported that President Trump had violated the Impoundment Control Act. The GAO concluded that Trump had unilaterally withheld $214 million in Defense Department aid for Ukraine, which had been legislatively appropriated by Congress, without obtaining authorization.

The Impoundment Control Act was passed in 1974, at the height of the Watergate scandal, to prevent a rogue president from withholding lawfully appropriated funds. The Act mandates that the president must transmit a "special message" to the House and Senate, specifying the amount of funding to be withheld and the reasons for doing so.

Recent documents released through a Freedom of Information Act lawsuit disclose that the White House Office of Management and Budget blocked the military aid under direct orders from Trump and knowingly failed to file a report with Congress. Trump disputed the GAO's conclusion, claiming he acted lawfully under his authority to carry out American foreign policy.

Trump's withholding of funds intended for Ukraine is not an isolated incident. During his first term, he held up nearly $400 million in military aid to Ukraine while pressuring President Volodymyr Zelenskyy to open a corruption investigation into Joe Biden and his family. The GAO ruled that these actions also violated the Impoundment Control Act.

Trump and his advisers, including his OMB director pick, Russ Vought, have argued that the president has the unilateral power to withhold funds appropriated by Congress, a claim that contravenes decades of court decisions and the Impoundment Control Act. Legal experts predict that if Trump were to assert this power, it would provoke a major clash in the federal courts and Congress, and could fundamentally alter Congress's power over the budget.

Trump broke a federal law against election tampering

On January 5, 2021, a transcript of a phone call between President Donald Trump and Georgia Secretary of State Brad Raffensperger was released by the Washington Post. In the call, Trump pressured Raffensperger to "find" enough votes to overturn his loss to President-elect Joe Biden in Georgia. Legal experts have argued that Trump may have broken a U.S. federal law and a Georgia state law against election tampering.

Georgia has a state law against "criminal solicitation to commit election fraud," which makes it illegal for a person to intentionally solicit or request another person to engage in election fraud. According to Georgia State University law professor Anthony Michael Kreis, a key question is whether Trump actually requested that Raffensperger fabricate votes or was simply expressing his opinion on the election results. Trump's potential defense could be that he genuinely believed the election was rigged against him and that he was not "willfully and knowingly" trying to interfere with the election.

Separate from the Georgia state law, there is also a U.S. federal law that makes it illegal to attempt to "deprive or defraud" people of a "fair and impartially conducted election process." Loyola Law School professor Jessica Levinson described Trump's phone call as a "flagrant federal criminal violation," suggesting that he was using threats to push Raffensperger to alter the legitimate vote count. Duke University School of Law professor Lisa Kern Griffin further emphasized that it is "hard to interpret the president's threatening call demanding that election officials 'find' votes for him otherwise" as anything other than soliciting the commission of election fraud.

In conclusion, President Donald Trump's phone call with Georgia Secretary of State Brad Raffensperger may have violated federal law and Georgia state law against election tampering. Legal experts have differing opinions on the strength of the potential case, and it remains uncertain whether formal charges will be brought against Trump.

Trump broke a Georgia state law against election tampering

According to legal experts, Trump may have broken a Georgia state law against "criminal solicitation to commit election fraud" by pressuring Georgia's top election official, Brad Raffensperger, to "find" enough votes to overturn his loss to Joe Biden in the state.

Georgia's state law against election fraud makes it illegal for a person to intentionally solicit, request, command, or otherwise attempt to cause another person to engage in election fraud. In a phone call with Raffensperger, Trump said, "All I want to do is this: I just want to find 11,780 votes, which is one more than we have." This request could be interpreted as Trump attempting to solicit or cause Raffensperger to engage in election fraud by finding specific votes to change the election outcome.

Legal experts argue that Trump's power as a sitting president, combined with vague threats of prosecution, amounted to him making an unlawful demand of Raffensperger under the Georgia statute. Duke University School of Law professor Lisa Kern Griffin, a former federal prosecutor, stated that it is "hard to interpret the president's threatening call demanding that election officials 'find' votes for him otherwise" as anything other than soliciting the commission of election fraud.

However, it is important to note that Trump has a potential legal defense and the chances of him being prosecuted are slim. Criminal laws generally require a guilty state of mind or a deliberate intent to commit a crime. Trump could argue that he genuinely believed the election was rigged against him and that he was simply expressing his genuine views on the election results. Additionally, Biden has stated that a Trump criminal trial would not be in the national interest, suggesting that federal charges are unlikely.

Trump may have committed incitement

On February 13, 2021, former US President Donald Trump was acquitted of impeachment charges alleging that he incited the United States Capitol riots. Despite the Senate not reaching the two-thirds majority required to convict Trump, this does not necessarily mean that he is innocent.

Trump's speech near the Capitol building was the focus of the incitement charge. Prior to the attack on the Capitol, Trump encouraged voters to attend the event, which he named a "Save America March". At the event, Trump continued to claim that the election was stolen, and that he and his supporters "will not take it anymore" and must "stop the steal". He also added that " [w]hen you catch somebody in a fraud, you're allowed to go by very different rules". While most of Trump's speech focused on calls to fight and show strength, he did make the comment that he knew everyone would soon march over to the Capitol building to "peacefully and patriotically make [their] voices heard".

Trump's statements must be directed at inciting or producing imminent lawless action to satisfy the first prong of the Brandenburg test. Trump's call to his supporters to march over to the Capitol building was made directly to his supporters. However, it is not entirely clear from Trump's statements alone that he intended for illegal action to take place, as he did not explicitly say "go storm the Capitol". Instead, he used vague language that does not, on its own, constitute a call for lawless action.

Trump's speech must also have been likely to incite or produce such lawless action to be considered incitement under the Brandenburg test. The fact that the speech was made near the Capitol building to a group of angry Trump supporters, who believe that the election was stolen, weighs heavily against Trump since these factors make it more likely that action would ensue.

Although Trump's statements seem to pass the second prong of the Brandenburg test, it's unlikely that Trump could be found guilty of incitement because his statements fail the first prong of the test. Despite the fact that Trump did seem to direct his supporters to storm the Capitol, it is not clear enough that Trump's statements were directed at inciting imminent lawless action or that Trump intended such a result based on his speech alone.

Trump may have obstructed an official proceeding

On January 6, 2021, then-President Donald Trump addressed a rally in Washington, D.C., urging his supporters to "stop the steal" and march on the Capitol. This incited a violent mob to storm the Capitol, resulting in five deaths and over 140 injuries. The mob was armed and banged on the doors of the House and Senate chambers, causing proceedings to be halted.

In the aftermath, hundreds of rioters were charged with "obstructing an official proceeding" under 18 U.S.C. § 1512(c)(2). This statute defines "obstructing an official proceeding" as "corruptly" obstructing, impeding, or interfering with any official government proceeding and carries a penalty of up to 20 years in prison.

Former President Trump was also indicted on four criminal counts in connection with his efforts to overturn the 2020 election results, including "obstructing an official proceeding" and "conspiring to obstruct an official proceeding." The indictment alleges that Trump obstructed Congress' certification of the electoral college results by creating fake election certificates, pressuring then-Vice President Mike Pence to disregard President-elect Joe Biden's electors, and pushing the Department of Justice to falsely claim there were issues with the vote in Georgia and other states.

The question of whether Trump's actions constitute "obstructing an official proceeding" is complex and depends on the interpretation of the statute. Some legal analysts argue that Trump's conduct may not fall under this charge if a narrower interpretation of the statute is adopted, such as the "Liability Interpretation", which suggests that the statute only applies to direct obstruction and not indirect obstruction through the actions of a third party.

However, the majority of courts have favored a broader interpretation, holding that the statute should be construed broadly to encompass all possible acts of obstruction. The Department of Justice has charged Trump under this interpretation, arguing that his actions fall within the scope of "obstructing an official proceeding."

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