Trump’s pressure on Georgia election officials raises legal questions

Allie Bice, Kyle Cheney, Anita Kumar and Zach Montellaro

President Donald Trump’s effort to pressure Georgia officials to “find” enough votes to overturn President-elect Joe Biden’s victory could run afoul of federal and state criminal statutes, according to legal experts and lawmakers, who expressed alarm at Trump’s effort to subvert democracy with less than three weeks left in his term.

“We have won the election in Georgia based on all of this. And there’s nothing wrong with saying that, Brad,” Trump told Georgia Secretary of State Brad Raffensperger on an hourlong Saturday phone call, according to a recording of the conversation, which also included Chief of Staff Mark Meadows and legal advisers to the president. “And the people of Georgia are angry. The people in the country are angry. And there’s nothing wrong with saying that, you know, um, that you’ve recalculated.”

POLITICO has confirmed the recording, which was first obtained by The Washington Post and The Atlanta Journal-Constitution. The leaked audio comes as Congress is set to certify the Electoral College votes on Wednesday. At least 12 incoming and current Republican senators, along with well over 100 Republican representatives, have said they are going to challenge the results based on unsupported allegations of voter fraud.

In the audio, the president asked that officials find that ballots were shredded in Fulton County and that Dominion election machinery was removed or tampered with, in an effort to skew results. Ryan Germany, the secretary of state’s general counsel, responded unequivocally in the phone call that machinery was not moved or altered.

The president also accused the officials of knowing about election interference but not reporting it. “That’s a criminal offense,” Trump said. “And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”

Legal experts say the combination of Trump’s request to “find” a specific number of votes — just enough to put him ahead of Biden — and his veiled reference to criminal liability for Raffensperger and his aides could violate federal and state statutes aimed at guarding against the solicitation of election fraud. The potential violations of state law are particularly notable, given that they would fall outside the reach of a potential pardon by Trump or his successor. On Capitol Hill, some Republicans expressed alarm about the call, while Democrats indicated that they viewed it as a potential criminal offense.

“In threatening these officials with vague ‘criminal’ consequences, and in encouraging them to ‘find’ additional votes and hire investigators who ‘want to find answers,’ the President may have also subjected himself to additional criminal liability,” said Rep. Jerry Nadler of New York, chair of the House Judiciary Committee and one of the seven House Democrats who prosecuted Trump’s impeachment last year for abuse of power.

Rep. Adam Kinzinger of Illinois, who has become one of Trump’s loudest GOP critics in Congress, called Trump’s call “absolutely appalling” and said it should serve as a warning to the dozens of Republicans preparing to support his efforts to overturn the election results this week.

Rep. Sanford Bishop (D-Ga.) said: “It is the antithesis of what our democratic process is, and sounds like it could be illegal.”

Rep. Adam Schiff (D-Calif.), who led Trump’s impeachment trial for Democrats, described the phone call as “among the most despicable abuses of power of his long list, possibly criminal, morally repugnant, virulently undemocratic and dangerous to our democracy.”

According to the audio, Trump asked Raffensperger and his counsel Ryan Germany to find 11,780 votes, “which is one more than we have, because we won the state.”

“We won the election, and it’s not fair to take it away from us like this,” he added. “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.”

In the audio, an often rambling Trump contradicted his own attorneys at several points — and continued to push conspiracy theories that the election was somehow stolen from him. “There’s no way I lost Georgia, there’s no way,” the president said at one point during the call.

Trump was joined on the call by Meadows — who at one point suggested “in the spirit of cooperation and compromise," that the parties find a “path forward that’s less litigious,” which was rejected by Raffensperger — and a couple of attorneys, including Cleta Mitchell, a partner at the large firm Foley & Lardner whose involvement in the Trump legal efforts to undermine the election had gone unreported until the disclosure of the call.

He also said Republicans could lose the pair of Senate runoffs in the state that will be held on Tuesday, saying voters may not vote because of it.

Trump is scheduled to visit the state on Monday for a rally in support of Republican Sens. David Perdue and Kelly Loeffler, who are facing off against Democrats Jon Ossoff and Raphael Warnock. Trump said during the call that he intended to air his grievances during the rally, and said Raffensperger could cost Republicans the seats.

“You have a big election coming up,” Trump said. “Because of what you’ve done to the president, a lot of people aren’t going out to vote. And a lot of Republicans are going to vote negative, because they hate what you did to the president.”

Trump also continued his attack on Georgia’s Republican governor, Brian Kemp, calling himself a “schmuck” for previously supporting Kemp.

Even absent Saturday’s call, Trump is facing increasingly acute legal exposure upon leaving office. His company is the subject of two broadening investigations — one by the Manhattan district attorney and one by the state of New York — for potential financial crimes. Although Trump has openly considered the notion of a self-pardon, such a move would not extend to state or local liability.

“I’ve charged extortion in mob cases with similar language,” said Daniel Goldman, a former prosecutor who helped lead the House Intelligence Committee’s impeachment inquiry in 2019.

Georgia state law includes two provisions that criminalize “solicitation of election fraud” and “conspiracy to commit election fraud.” Trump’s detractors also pointed to a federal statute that criminalizes “the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.”

Anthony Michael Kreis, a Georgia State University law professor, said: “The Georgia code says that anybody who solicits, requests or commands or otherwise attempts to encourage somebody to commit election fraud is guilty of solicitation of election fraud. ‘Soliciting or requesting’ is the key language. The president asked, in no uncertain terms, the secretary of state to invent votes, to create votes that were not there. Not only did he ask for that in terms of just overturning the specific margin that Joe Biden won by, but then said we needed one additional vote to secure victory in Georgia.”

“There’s just no way that if you read the code and the way the code is structured, and then you look at what the president of the United states requested, that he has not violated this law — the spirit of it for sure,” Kreis continued.

Kreis added that the phone call could not be divorced from recent episodes in which Trump amplified a false conspiracy theory about Raffensperger’s family and his vows to end the political careers of people like the secretary of state and Kemp for upholding Biden’s victory in the election. He also said Trump’s request for a specific number of votes — just enough to prevail by one — undercut the notion that he was simply asking for the truth.

“If I’m the president of the United States and my pardon power is not — does not extend to state acts, I don’t think that in the last few days of my term that I would want to be engaging in activities that even remotely subject me to the possibility of state criminal prosecution,” Kreis said. “That’s what makes this even more bewildering to me, is because if he had sensible advisers they would just keep him off the phone.”

Ned Foley, director of election law at the Moritz College of Law at Ohio State University, said: “The character of what I heard on the call does raise the question whether under federal law or state law it’s functionally equivalent of asking someone to falsify election returns, which is presumably criminal in every state in the country. He’s trying to pull every string or every lever or do everything, including things that may be criminal, to the point of subverting the result.”

The White House and the Georgia secretary of state’s office did not respond to requests for comment on Sunday.

The Biden camp rebuked Trump over the call.

“We now have irrefutable proof of a president pressuring and threatening an official of his own party to get him to rescind a state’s lawful, certified vote count and fabricate another in its place,” said Bob Bauer, a senior Biden adviser. “It captures the whole, disgraceful story about Donald Trump’s assault on American democracy.”

After the phone call with Georgia officials, Trump phoned in to a Zoom call with legislators from the battleground states of Arizona, Michigan, Pennsylvania and Wisconsin late Saturday to talk about allegations of voter fraud in the presidential election.

Also on the call were Trump’s lawyer Rudy Giuliani, White House trade adviser Peter Navarro, Justice Department official John Lott Jr. and Chapman University law professor John Eastman, according to a person familiar with the call.

They discussed efforts by both state legislators and members of Congress to try to overturn the certified results for Biden, the person said.

The call was organized by the group Got Freedom?, which says it’s fighting election fraud and is planning to conduct a similar briefing for members of Congress.

Giuliani did not respond to a request for comment on Sunday.

Navarro, who wrote a report on the election, mentioned the call with legislators on a Fox News appearance on Saturday night.

“We gave them the receipts,” he said. “We explained exactly how the Democrat Party as a matter of strategy stole this election from Donald J. Trump.”

Tyler Pager and Zach Montellaro contributed to this report.

CORRECTION: An earlier version of this article incorrectly described Anthony Michael Kreis‘ position. He teaches at Georgia State University.