Did Trump break the law? President's call to Georgia's Raffensperger spurs demand for criminal investigation

Kevin Johnson and Kristine Phillips, USA TODAY

In closing arguments at President Donald Trump’s impeachment trial last year, House Intelligence Committee Chairman Adam Schiff leveled a prescient warning.

Of the president’s efforts to pressure the Ukrainian president to smear Democratic rival Joe Biden, Schiff declared that Trump “will do so again.”

“You cannot constrain him. He is who he is,” the California Democrat said.

Nearly a year later, Trump appeared to make good on Schiff’s admonition during a stunning hourlong telephone call in which the president sought to strong-arm Georgia Secretary of State Brad Raffensperger to overturn his election defeat in that state.

In a recorded phone call obtained by The Washington Post, President Trump pressured Georgia Secretary of State Brad Raffensperger to "find" votes to reverse his loss.
In a recorded phone call obtained by The Washington Post, President Trump pressured Georgia Secretary of State Brad Raffensperger to "find" votes to reverse his loss.

Two weeks before the end of Trump’s presidency, there is little time to launch an impeachment inquiry, but legal experts and Democratic lawmakers assert that Trump’s action was tantamount to criminal conduct that should open him to fresh legal scrutiny.

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“This is a horrendous effort to undermine our system of government,” said Donald Ayer, a former deputy attorney general in President George H.W. Bush's administration. “Is it something within the purview of the Department of Justice? Yes, absolutely. You open an investigation to figure out whether there is something you can do to stop it or punish it.”

Less than 24 hours after Trump's conversation with Raffensperger was made public, the first formal calls for a criminal inquiry came Monday from Reps. Ted Lieu, D-Calif., and Kathleen Rice, D-N.Y., who urged the FBI to "open an immediate criminal investigation."

"The evidence of election fraud by Mr. Trump is now in broad daylight," the lawmakers said in a letter to FBI Director Christopher Wray.

The FBI acknowledged it received the referral but declined further comment.

The Justice Department also declined to comment.

Raffensperger, in an interview on ABC's "Good Morning America," said an "appropriate venue" for an investigation would probably be the Fulton County, Georgia, District Attorney's Office.

District Attorney Fani Willis, a Democrat, said her office stood ready to investigate if a case was referred to prosecutors.

"Like many Americans, I have found the news reports about the president’s telephone call with the Georgia Secretary of State disturbing," Willis said in a statement.

"As I promised Fulton County voters last year, as District Attorney, I will enforce the law without fear or favor," she said. "Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable."

'It was a veiled threat'

Lieu and Rice said their joint request to the FBI centered on provisions of two federal election fraud statutes and one Georgia law, which they say Trump may have breached during his call Saturday with Raffensperger and the secretary of state's general counsel.

The lawmakers called specific attention to Trump's demands for Georgia officials to “find 11,780 votes” to overturn the Biden victory.

“And there’s nothing wrong with saying, you know, um, that you’ve recalculated," Trump told the officials, according to a recording of the conversation obtained by The Washington Post.

Lieu and Rice said the president's request for a recalculation of the vote represented a solicitation of election fraud in violation of federal and state laws.

"We request that if you believe Mr. Trump also violated state criminal law, that you refer the state violations to the Georgia Attorney General or the appropriate district attorney in Georgia," the lawmakers said in the letter to Wray.

At a briefing late Monday afternoon in Atlanta, Gabriel Sterling, the state's voting system manager, said he was not aware of discussions about the prospect of a criminal investigation.

Asked to assess the president's call, Sterling said, “I personally found it to be something that was not normal, out of place. Nobody I know who would be president would do something like that to a secretary of state.”

Nick Akerman, an assistant special prosecutor during the Watergate investigation, said Trump’s call to Raffensperger is “not much different” from wiretapped conversations involving Mafia bosses he heard during his years as a federal prosecutor.

Akerman said he was particularly struck by Trump’s suggestion that "it’s going to be very costly" if the state official doesn’t recount votes in a way that favors Trump.

“So tell me, Brad, what are we going to do?” said Trump, who was joined on the call by White House chief of staff Mark Meadows and the president's lawyers. “We won the election, and it’s not fair to take it away from us like this. And it’s going to be very costly in many ways. And I think you have to say that you’re going to reexamine it, and you can reexamine it, but reexamine it with people that want to find answers, not people that don’t want to find answers.”

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White House Chief of Staff Mark Meadows joined President Trump in his call to the Georgia secretary of state.
White House Chief of Staff Mark Meadows joined President Trump in his call to the Georgia secretary of state.

Akerman said the words represented a threat.

“(Trump) doesn’t come right out and say, ‘You’re going to be in big trouble.’ … When he says it’s going to be costly, I think everybody knows what that means,” he said. “It’s specific enough and vague enough that you know what he’s talking about. Who would it be costly to? I mean, come on. … It was a veiled threat saying, ‘You better take care of this and find me these ... votes or you’ll be in trouble.’

“People get the message. … It doesn’t take much. It’s all there. It’s right out of ‘The Godfather,’” Akerman said.

The former Manhattan federal prosecutor characterized the call as part of "a pattern of criminal activity" by the president, referring to Trump's call in 2019 when he repeatedly urged Ukrainian President Volodymyr Zelensky to investigate Biden, then his potential presidential rival. Akerman also cited the instances of possible obstruction outlined in special counsel Robert Mueller’s report on the Russia investigation and the presidential pardons he has granted to allies convicted in the Russia inquiry.

Mueller, who refused to clear Trump of criminal wrongdoing, said charging him with obstruction was "not an option" because of a long-standing Justice Department policy against prosecuting a sitting president. After Trump leaves office this month, that policy would no longer be relevant should prosecutors pursue an investigation.

“This is the way he operates. You can’t look at (the call to Georgia officials) myopically. You have to look at this whole pattern of activity,” Akerman said. “If I were a prosecutor and I was given this case, I would be looking at … the federal racketeering statute.”

Proving intent, political obstacles

As jarring as Trump's words sounded on the recording, some former prosecutors said, building a criminal case probably would be difficult.

"Proving the criminal intent behind the words that Trump used during the calls is the biggest hurdle," said David Weinstein, a former Miami federal prosecutor. "I ... can make an argument that (Trump) was encouraging Raffensperger to create fraudulent evidence or simply change the numbers. Alternatively, I can make an argument that Trump was simultaneously actively extorting Raffensperger to do the same, with a threat of criminal prosecution behind that suggestion."

Weinstein said Trump defenders would probably argue that the president was "puffing and simply suggesting other alternatives, not actively extorting or encouraging Raffensperger to break the law."

"The prosecution would then have to show proof that Trump went beyond that and that it created a reasonable belief in Raffensperger’s mind that he was being extorted or forced to break the law," he said.

Brian Kelly, who was head of the public corruption unit of the U.S. attorney’s office in Boston and was among the attorneys who prosecuted organized crime boss Whitey Bulger, said he does not believe the Biden Justice Department will – or should – pursue a criminal investigation based on Trump's call.

“Proving election law violations are very difficult. If President Trump believes there are actually additional legitimate votes which need to be counted, then he is certainly within his rights to urge state officials to find them and count them,” Kelly said. “It’s a waste of time, and it’s inappropriate to use the criminal justice system to settle political scores.”

Patrick Cotter, a former federal prosecutor who oversaw numerous cases against organized crime figures, said a case against Trump would face "political obstacles."

"Because Trump is an elected official who has just lost an election, he and his supporters would claim that any criminal prosecution was politically motivated," Cotter said. "Leaving aside the political difficulties of such a situation, the ability to ever seat a jury that was not infected with Trump’s false claims of a political motivation for the charges would be a serious obstacle to conviction. Not insurmountable in my opinion, but significant."

Cotter said it was hard to separate the Trump recording from cases involving the conversations of known criminals – with a few exceptions.

"I would note that the majority of the mafioso I prosecuted or investigated would never have exhibited the astounding stupidity and obviousness of the Trump gang on that call," Cotter said. "More intelligent criminals would never have made such threats on a call they should have expected was being recorded."

Washington and Georgia require only one-party consent for recording phone calls. "Somewhere I imagine John Gotti is shaking his head and muttering, ‘Freakin’ amateurs,’” Cotter said.

Opinion: Impeach Trump over new threats

This article originally appeared on USA TODAY: Trump call to Georgia's Raffensperger spurs demand for investigation