Trump's Phone Fiasco: Law Broken?

On January 2, 2021, then-U.S. president Donald Trump pressured Georgia secretary of state Brad Raffensperger to find 11,780 votes and overturn the state's 2020 election results. Legal experts suggested that Trump's behaviour and demands could have violated state and federal laws. Trump's phone call with Raffensperger was cited in the article of impeachment in the second impeachment of Donald Trump.

Trump's phone call with Georgia Secretary of State Brad Raffensperger

On January 2, 2021, then-U.S. President Donald Trump held an hour-long phone call with Georgia Secretary of State Brad Raffensperger. Trump was joined by his chief of staff Mark Meadows, trade adviser Peter Navarro, Justice Department official John Lott, law professor John C. Eastman, and attorneys Rudy Giuliani, Cleta Mitchell, Alex Kaufman, and Kurt Hilbert. Raffensperger was joined by his general counsel Ryan Germany.

During the call, Trump pressured Raffensperger to "find 11,780 votes" and overturn the state's 2020 election results. Trump had refused to accept his defeat to Joe Biden and had made a months-long effort to overturn the results. He urged Raffensperger to reinvestigate the election results, claiming various conspiracy theories about voter fraud. Raffensperger repeatedly told Trump that there was no electoral error and that the election results were correct and legitimate.

Trump's attempt to pressure Raffensperger was widely condemned by Democrats and some Republicans. Legal experts suggested that Trump's behaviour may have violated state and federal laws, including election law and Title 52 of the United States Code. The phone call was cited in the article of impeachment in Trump's second impeachment trial.

Raffensperger's office, as well as Fulton County prosecutors, launched investigations into potential election interference and Trump's efforts to overturn the results. On August 14, 2023, Trump was indicted in Fulton County on charges including racketeering and fraud, with the phone call being a central element of the indictment.

Trump's potential violation of federal and state laws

On January 2, 2021, then-U.S. President Donald Trump pressured Georgia Secretary of State Brad Raffensperger to "find 11,780 votes" and overturn the state's 2020 election results. Trump's demands were perceived as pleading and threatening, and legal experts suggested that his behaviour may have violated state and federal laws.

Potential Violation of Federal Law

Trump may have violated a federal law that makes it illegal to attempt to "deprive or defraud" people of a "fair and impartially conducted election process." Legal experts described his phone call with Raffensperger as a "flagrant federal criminal violation," and it appeared that Trump was using threats to push Raffensperger to alter a legitimate vote count.

Potential Violation of Georgia State Law

Georgia has a state law against "criminal solicitation to commit election fraud," which makes it illegal to intentionally solicit or attempt to cause another person to engage in election fraud. Legal experts suggested that Trump's request for Raffensperger to "find" a specific number of votes indicated that he was trying to change the election's outcome and threaten Raffensperger if he did not comply.

Trump's Potential Defense

If prosecuted, Trump would likely argue that he genuinely believed the election was rigged against him and that he was simply offering his views on the election results. He would argue that he was not "willfully and knowingly" trying to interfere with the election and did not have the intent required by the criminal statute.

Chances of Prosecution

Legal experts expressed doubt that federal charges would be brought against Trump, noting that President Joe Biden has stated that a criminal trial would not be in the national interest and could further divide the country. Any decision on federal prosecution would be made by the Biden administration after Trump leaves office.

Legal experts' opinions on Trump's behaviour

Legal experts have offered a range of opinions on former US President Donald Trump's behaviour, particularly in relation to his phone calls with Georgia Secretary of State Brad Raffensperger and other officials, which may have violated state and federal laws.

Some legal experts have suggested that Trump's phone calls with Raffensperger and other officials could be construed as bribery or obstruction, as he pressured them to overturn the state's election results by "finding" enough votes to secure his victory. Trump's conduct has been described as "inappropriate and contemptible" by election law scholar Edward B. Foley, while the executive director of Citizens for Responsibility and Ethics in Washington characterised it as "a low point in American history and unquestionably impeachable conduct."

Trump's attempts to pressure Raffensperger and other officials into interfering with the election results may have violated federal and state laws against soliciting election fraud or interference in elections. According to Professor of Constitutional Law Richard Pildes, Trump may have been "knowingly attempting to coerce state officials into corrupting the integrity of the election." Michael Bromwich, a lawyer, further suggested that Trump may have violated Title 52 of the United States Code when he expressed his desire to "find" additional votes.

The phone calls in question have also led to legal repercussions for Trump. On August 14, 2023, he was indicted in Fulton County on charges including racketeering and fraud, with the phone calls being a central element of the indictment. Additionally, Raffensperger's office launched a fact-finding and administrative investigation into potential election interference, and Fulton County prosecutors initiated a criminal investigation.

Trump's behaviour has been widely condemned by Democrats, with some describing it as an abuse of power and an impeachable offence. Vice President-elect Kamala Harris and Representative Adam Schiff, the chief prosecutor at Trump's first impeachment trial, were among those who criticised Trump's actions. Over 90 House Democrats supported a formal censure resolution, stating that Trump had "misused the power of his office by threatening an elected official with vague criminal consequences."

While some House and Senate Republicans also condemned Trump's conduct, none characterised it as criminal or impeachable. Republican Senator Pat Toomey, for instance, called it "a new low" while commending election officials for upholding their integrity. Other congressional Republicans, such as House Minority Leader Kevin McCarthy and Georgia Senator David Perdue, defended Trump's phone calls.

Trump's potential defence

Trump's attorneys have denied that his phone call with Georgia Secretary of State Brad Raffensperger was an attempt to pressure or threaten him into altering the election results. They claim that Trump was merely expressing his opinion that a careful examination of the ballots would reveal discrepancies and forgeries.

Trump himself has repeatedly denied any wrongdoing, claiming that the call was totally appropriate and that he was only seeking to ensure election integrity. He has characterised the allegations against him as a witch hunt and a hoax perpetrated by Democrats.

Trump and his supporters have also alleged that it was, in fact, Joe Biden who abused his power and pressured Ukraine to back away from a criminal investigation into his son, Hunter Biden, who worked for a Ukrainian energy company. They suggested that Biden, as Barack Obama's vice president, encouraged the firing of Ukraine's top prosecutor in 2015 because he had been investigating the energy company.

Trump's defence team could also argue that his use of a personal smartphone, while ill-advised, did not constitute a criminal offence. They may claim that he was unaware of the security risks and that his actions were not intentional. They could also argue that there is no evidence that Trump's phone was successfully hacked or that any sensitive information was compromised.

Additionally, Trump's defence could argue that his actions did not meet the legal threshold for election fraud or interference. They may claim that his statements during the phone call were protected under the First Amendment and that he did not directly order or instruct anyone to engage in fraudulent activities.

Likelihood of Trump being prosecuted

On January 2, 2021, then-U.S. president Donald Trump pressured Georgia secretary of state Brad Raffensperger to "find 11,780 votes" and overturn the state's 2020 election results. Trump's conduct was perceived as pleading and threatening, and legal experts have suggested that his behaviour and demands could have violated state and federal laws.

On January 11, the phone call was cited in the article of impeachment in the second impeachment of Donald Trump introduced in the House of Representatives. Raffensperger's office opened a fact-finding and administrative investigation of potential election interference, and Fulton County prosecutors opened a criminal investigation in February 2021.

On August 14, 2023, Trump, along with 18 co-defendants, was indicted in Fulton County on charges including racketeering and fraud. The phone call was a central element of the indictment.

Legal experts have warned that Trump should face prosecution over the phone call, with some stating that Trump had likely broken "both federal and state law". However, prosecutors might struggle to prove one key element of the case against him. The hard part for prosecutors would be proving Trump's state of mind, because the statutes require proof of knowledge and intent. If Trump did genuinely believe he beat 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.

Overall, while there is a possibility that Trump could be prosecuted and convicted for his actions during the phone call, it is also likely that he will be able to successfully argue that he genuinely believed the election was rigged and that he did not have the required intent for the crimes.

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