Trump's Telephone Call: Legal Or Illegal?

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. This hour-long conference call, along with other attempts to overturn the election results, led to Trump's second impeachment. Trump's efforts to pressure Raffensperger into reinvestigating the election results, despite being told there was no electoral error, were seen as pleading and threatening. Legal experts suggested that Trump may have violated state and federal laws, including election law and federal and state laws against soliciting election fraud or interference in elections. Trump's conduct was described as inappropriate and contemptible and an abuse of power, with some calling for a criminal investigation.

Trump's Ukraine call

In July 2019, a phone call between then-US President Donald Trump and Ukrainian President Volodymyr Zelenskyy sparked a political scandal that would come to be known as the Trump-Ukraine scandal. The scandal centred around allegations that Trump had attempted to coerce Zelenskyy into investigating his political rival, Joe Biden, and his son, Hunter Biden, in order to damage Biden's campaign for the 2020 Democratic Party presidential nomination.

In the call, Trump asked Zelenskyy to work with his personal lawyer, Rudy Giuliani, and Attorney General William Barr, on investigating the Bidens, as well as a conspiracy theory involving a Democratic National Committee server. Trump also requested that Zelenskyy investigate CrowdStrike, an American cybersecurity firm that had investigated cyberattacks on the Democratic National Committee in 2015 and 2016.

The scandal came to light when a whistleblower report revealed that Trump had withheld $400 million in military aid to Ukraine in an attempt to obtain quid pro quo cooperation from Zelenskyy. The White House corroborated the whistleblower's allegations, and a transcript of the call confirmed that Trump had requested investigations into the Bidens.

While the call may not have broken any specific laws, it proved to be a tipping point for Congressional Democrats, who launched an impeachment inquiry into Trump. Trump was impeached on charges of abusing the power of his office and obstructing Congress but was later acquitted by the Senate.

The scandal raised concerns about Trump's conduct and his attempts to pressure a foreign leader into interfering in a US election. It also brought attention to the broader issue of foreign interference in US elections and the potential consequences for national security.

Impeachment inquiry

In the United States, an impeachment inquiry is an investigation that usually occurs before a potential impeachment vote. An impeachment inquiry is not a required step in federal impeachment, as the Constitution does not require the House of Representatives to exercise its powers of impeachment in any specific manner. Articles of impeachment can be adopted without any formal inquiry. Nevertheless, impeachment inquiries have been used as a step in many federal impeachment efforts, with around 90 impeachment-related inquiries having been initiated by the House of Representatives since 1789.

The House of Representatives has the sole authority to decide to launch impeachment proceedings, including inquiries, against impeachable federal government officials. While anyone, including any member of the House, may suggest the launch of an impeachment proceeding, it is, in practice, the choice of the speaker of the House to allow the House to proceed towards an inquiry into the alleged wrongdoings.

There is no House rule that specifies that a vote is required to launch an impeachment inquiry. While the speaker may allow a House vote on whether to launch such an inquiry, it is argued by many legal and political experts that it is not legally required for a vote of the House to take place in order for the House to launch what can effectively be considered an impeachment inquiry. This means that a speaker may declare the launch of what would be considered an impeachment inquiry without any need for an authorizing vote.

The House brings articles (charges) of impeachment against an official. If the House adopts the articles by a simple majority vote, the official has been impeached. The Senate then holds an impeachment trial. If found guilty, the official is removed from office and may never be able to hold elected office again. If they are not found guilty, they may continue to serve in office.

In January 2021, then-U.S. President Donald Trump pressured Georgia secretary of state Brad Raffensperger to "find 11,780 votes" and overturn the state's election results from the 2020 presidential election, which he lost to Joe Biden. Trump's call with Raffensperger was released by The Washington Post and other media outlets the next day. According to the publicly released recording of the call and reports made by multiple news agencies, Trump attempted to pressure Raffensperger into reinvestigating the election results, despite being repeatedly told that there was no electoral error. Trump's repeated efforts to convince Raffensperger to find some basis to overturn the election results were perceived as pleading and threatening.

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 regarding Trump's efforts to overturn the results in Georgia, and Fulton County prosecutors opened a criminal investigation in February of the same year. 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.

In March 2021, in the course of the criminal investigation by Fulton County District Attorney Fani Willis into Trump's attempt to overturn the November 3 election, investigators obtained the audio recording made by the individual Trump was speaking to, from her computer. In response to a public records request, officials made the audio recording available to the press. The transcript and recording revealed that the quotations in the original Washington Post article were inaccurate. The recording indicated that Trump had encouraged the investigator to look into "dishonesty" in the Fulton vote count, but had never used the words "find the fraud".

The day after the Trump call was disclosed, Republican Georgia voting system implementation manager Gabriel Sterling sharply refuted Trump's claims of election fraud during a press conference with Raffensperger, listing and debunking several allegations made by Trump and his allies. Sterling said, "The president's legal team had the entire tape, they watched the entire tape, and from our point of view, intentionally misled the state's senate, voters and the people of the United States about this. It was intentional. It was obvious. And anybody watching this knows that."

Democrats condemned Trump's conduct. Vice President-elect Kamala Harris, as well as Representative Adam Schiff, said that Trump's attempt to pressure Raffensperger was an abuse of power. On January 4, 2021, Democratic U.S. Representatives Ted Lieu and Kathleen Rice sent a letter to FBI Director Christopher Wray asking him to open a criminal investigation of the incident, writing that they believed Trump had solicited, or conspired to commit, "a number of election crimes." More than 90 House Democrats supported a formal censure resolution, introduced by Representative Hank Johnson of Georgia, to "censure and condemn" Trump for having "misused the power of his office by threatening an elected official with vague criminal consequences if he failed to pursue the president's false claims" and for attempting "to willfully deprive the citizens of Georgia of a fair and impartial election process in direct contravention" of state and federal law. Some congressional Democrats called Trump's conduct an impeachable offense.

Trump's Georgia call

On January 2, 2021, then-U.S. President Donald Trump held a one-hour phone call with Georgia Secretary of State Brad Raffensperger. During the call, Trump pressured Raffensperger to "find 11,780 votes" and overturn the state's 2020 election results, despite having been defeated by Joe Biden. Trump had refused to accept the election outcome and made months-long efforts to overturn the results.

In the call, Trump attempted to pressure Raffensperger into reinvestigating the election results, despite being told there was no electoral error. Trump's behaviour was perceived as pleading and threatening. He falsely suggested that Raffensperger could have committed a criminal offence by refusing to overturn the results. Legal experts suggested that Trump's demands could have violated state and federal laws, including federal and state laws against soliciting election fraud or interference in elections.

The phone call was cited in the article of impeachment in the second impeachment of Donald Trump, introduced in the House of Representatives on January 11, 2021. Raffensperger's office and Fulton County prosecutors also opened investigations into potential election interference and fraud. On August 14, 2023, Trump was indicted in Fulton County on charges including racketeering and fraud, with the phone call being a central element.

Trump's conduct was widely condemned by Democrats, who described it as an abuse of power and an impeachable offence. Some House Republicans also criticised Trump's actions, although none described it as criminal or impeachable. The incident highlighted the debate over what constitutes an impeachable offence, with legal scholars agreeing that it does not need to be an actual crime.

Raffensperger's legal rights

Some commentators and politicians raised legal concerns about Brad Raffensperger's recording and disclosure of his phone call with then-U.S. President Donald Trump. Far-right media outlets, such as Gateway Pundit, claimed that Raffensperger may have violated the Espionage Act. However, legal experts cited by PolitiFact countered that the content of the phone call was unrelated to national security and, therefore, did not fall under the Act.

There were also rumours about a possible lawsuit against Raffensperger for recording the conversation without Trump's consent. However, this notion was dispelled as the telephone call recording laws in both Georgia and the District of Columbia, where the conversation took place, only require "one-party consent". This means that any participant in a phone call can legally record it without the consent of the other parties. Raffensperger also stated that no non-disclosure agreement was established before or during the call as it had been arranged hastily.

Trump's defence

The defence of former President Donald Trump could argue that the phone call with the Ukrainian President did not break any specific laws and therefore did not warrant impeachment. While the call may have been inappropriate, it did not meet the criteria for impeachment, which are treason, bribery, and high crimes and misdemeanors.

The defence could further argue that the call did not violate the letter of the law. National security lawyer Bradley Moss stated that "I don't know if the law has quite caught up to that idea, because we haven't really contemplated the notion". The call did not violate the Foreign Corrupt Practices Act, as it did not involve payment to an individual government official or for business purposes.

Additionally, the Justice Department determined that the call did not represent a campaign finance violation. Department Spokesperson Kerri Kupec stated that "the Department's Criminal Division reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted".

The defence could also argue that the call was not an impeachable offence as it did not meet the criteria outlined in the Constitution. Impeachment is a political process, and the call may not have risen to the level of "high crimes and misdemeanors" that would be required for impeachment.

Furthermore, the defence could claim that Trump was within his rights as President to conduct foreign policy under Article II of the Constitution. The broad powers granted to the President under this article could be used as a justification for the call.

Finally, the defence could argue that Trump's actions were not criminal and that he was simply exercising his powers as President. While his actions may have been controversial, they did not rise to the level of criminality. The standing view of the executive branch is that a sitting President cannot be indicted.

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