Did The President Inspire Lawbreaking?

While the president is tasked with enforcing the laws passed by Congress, it is important to note that no one, not even the president, is above the law. The president, like all Americans, must pay taxes, give evidence when summoned by a court or Congress, and follow the law. In the case of former President Donald Trump, there have been several instances where his actions and statements have been called into question, including his efforts to obstruct the investigation into Russia's meddling in the 2016 election and his suggestion that he might seek an unconstitutional third term. Trump has also been accused of breaking federal and state laws by pressuring Georgia's top election official to find enough votes to overturn his 2020 election loss. While he may have a potential legal defense, legal experts argue that Trump's conduct amounts to election tampering and a violation of the law.

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

On January 2, 2021, then-US President Donald Trump held an hour-long phone call with Georgia Secretary of State Brad Raffensperger. Trump was joined by several of his aides, including Chief of Staff Mark Meadows and trade adviser Peter Navarro. Raffensperger was joined by his general counsel, Ryan Germany.

During the call, Trump pressured Raffensperger to "find 11,780 votes", the number he needed to overturn Joe Biden's victory in Georgia during the 2020 presidential election. Trump had refused to accept his loss to Biden and had made a months-long effort to overturn the results. Prior to the call, Trump had repeatedly spoken to state and local officials in at least three states where he had lost, urging them to recount votes, throw out some ballots, or replace the Democratic slate of electors with a Republican one.

Trump falsely claimed during the call that he had won Georgia by "hundreds of thousands of votes" and that Raffensperger should "reevaluate" the election results, citing various conspiracy theories about voting in the state. Raffensperger, in response, maintained that the election results were correct and legitimate and that Trump "had got his data wrong".

Trump also attempted to intimidate Raffensperger, suggesting that he and his attorney could face criminal investigations if they did not comply with his demands. Trump said, "You know, that's a criminal offense. And you know, you can't let that happen. That's a big risk to you."

The phone call was released by The Washington Post and other media outlets the next day, after Trump made a statement about it on Twitter. The recording of the call and reports by multiple news agencies revealed that Trump had attempted to pressure Raffensperger into reinvestigating the election results, despite being repeatedly told that there was no electoral error.

Legal experts suggested that Trump's behaviour and demands could have violated state and federal laws, including election law and laws against soliciting election fraud or interference in elections. Trump's call with Raffensperger was cited in the article of impeachment in his second impeachment trial, and it was also a central element in his indictment on charges including racketeering and fraud in Fulton County in August 2023.

Trump's potential defence

Defence Against Accusations of Pressuring Georgia Election Officials

Legal experts have outlined a potential defence for Trump, arguing that a prosecution arising from his phone call with Georgia Secretary of State Brad Raffensperger is unlikely. Trump could argue that he was simply offering his opinion on the election results and not making a demand. He could claim that he genuinely believed the election was rigged and, therefore, lacked the "guilty state of mind" required for criminal intent. This defence strategy is supported by the fact that Trump had expressed his concerns about election fraud during the call, stating, "We won the election, and it's not fair to take it away from us like this."

Defence Against Accusations of Obstruction of Justice

Trump's lawyers have argued that he has absolute immunity from being forced to testify or provide evidence, a privilege no other president has successfully claimed. They contend that certain presidential aides are "absolutely immune" from being compelled to testify. Additionally, Trump's attorneys have asserted that neither Congress nor state nor federal law enforcement officials can investigate the president, implying that he is above reproach and immune from scrutiny.

Defence Against Accusations of Election Fraud in Georgia

Trump's lawyers have requested that his conviction in this case be overturned, citing the Supreme Court immunity ruling. They argue that Trump has broad immunity from prosecution as a president, based on a 1982 precedent recognising immunity in civil cases. While lower courts rejected this claim, the Supreme Court ruled that Trump has limited immunity for official acts performed as president. This defence strategy hinges on interpreting the Supreme Court's ruling broadly to encompass the actions in question.

Defence Against Accusations of Mishandling Classified Documents

In this case, Trump benefited from a favourable ruling by Judge Aileen Cannon, a Trump appointee, who dismissed the charges. The dismissal was based on the argument that the appointment of special prosecutor Jack Smith violated the US Constitution. Trump's lawyers have consistently sought to delay this case, and the Supreme Court's immunity decision may provide further grounds for evading prosecution.

The chances of Trump being prosecuted

Trump's lawyers have argued that he has immunity as a sitting president, which has delayed some of the cases against him. However, this argument has been rejected by some judges and is currently being reviewed by the Supreme Court.

Legal experts believe that Trump will be convicted in at least one case, as the witnesses against him include many Republicans, such as his former cabinet members, attorney general, and vice president. They argue that this makes it more difficult for Trump to claim that "they're all out to get him".

Trump's other criminal cases include federal charges of mishandling classified documents, obstructing justice, and interfering in the 2020 federal election, as well as state charges of false accounting related to hush money payments.

While Trump avoided jail time and other penalties in the New York case due to his age, lack of a criminal record, and the non-violent nature of his crimes, it is unclear if he will be able to avoid prosecution in the other cases.

Trump's claim that he could pardon himself

While Donald Trump has claimed that he has the "complete power to pardon", it is unclear whether this applies to self-pardoning. The US Constitution states that the president has the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". However, there is no precedent for a US president issuing a self-pardon, and legal experts are divided on the issue.

Some legal experts argue that a self-pardon would violate the principle that "no one may be a judge in his own case". Laurence H Tribe, Richard Painter, and Norman Eisen wrote in the Washington Post that "the Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law".

Other experts, however, argue that the Constitution does not explicitly prohibit a president from pardoning themselves. Mark Tushnet, a law professor at Harvard University, stated that "a self-pardon might well be outrageously improper... but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy".

While the legality of a self-pardon is uncertain, it is generally agreed that such an action would be highly controversial and could lead to serious questions about abuse of power. Additionally, a self-pardon would only apply to federal charges and not to state-level crimes.

Trump has previously pardoned several individuals, including his former national security adviser Michael Flynn and his former campaign manager Paul Manafort, both of whom were ensnared in the Special Counsel inquiry into alleged Russian meddling in the 2016 election.

Historical examples of presidents breaking the law

While it is a foundational principle of American democracy that no one, not even the president, is above the law, there have been several instances in US history where presidents have broken the law.

One of the most famous examples is the Watergate scandal, where President Richard Nixon used the CIA to spy on Americans and obstructed the FBI's investigation into a burglary at the Democratic National Committee's headquarters. Nixon resigned in disgrace before impeachment hearings began, but not before firing the first special independent prosecutor looking into the matter.

Another example is President Bill Clinton, who was prosecuted while in office for lying under oath in a civil deposition—a crime rarely prosecuted. Clinton consented to the prosecution and pleaded guilty, presumably to avoid a more serious indictment after his presidency.

During the Civil War, Abraham Lincoln ordered the arrest and incarceration of peaceful journalists, newspaper editors, and a member of Congress without warrants or due process. This could be considered a violation of their constitutional rights and an abuse of presidential power.

Additionally, during World War I, Woodrow Wilson ordered federal agents to arrest people who sang German songs or read the Declaration of Independence in public, infringing upon their freedom of speech.

Finally, during the Great Depression, Franklin D. Roosevelt ordered banks to confiscate gold from Americans who had purchased and possessed it lawfully, which could be considered theft or an abuse of executive power.

These examples demonstrate that while the president is not supposed to be above the law, there have been instances where presidents have broken the law or abused their power, often with political consequences but sometimes without legal repercussions.

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