Trump’s Georgia call triggers debate on criminal penalties

A leaked phone call in which President Trump can be heard cajoling, pressuring and vaguely threatening Georgia’s top elections official to “find” enough votes to reverse his election loss is raising questions about whether Trump should face criminal penalties.

Democratic lawmakers and a Georgia state elections official on Monday called for probes into whether Trump’s call amounted to an illegal effort to solicit Secretary of State Brad Raffensperger (R) to engage in voter fraud by overturning President-elect Joe Biden’s victory in the state.

It’s not clear yet if federal or state officials will heed the calls for investigations into whether the hourlong Saturday phone conversation violated federal or state statutes.

But even if prosecutors ultimately conclude that Trump could be charged, the decision over whether to proceed would likely involve weighing the interests of justice against the explosive political impact of prosecuting a current or recently sitting president.

Legal experts on Monday appeared divided on the question. Some argued that prosecuting Trump is necessary to restore certain democratic norms that were shattered during Trump’s White House tenure, especially amid a tumultuous lame-duck phase that has seen Trump launch numerous failed lawsuits to challenge Biden’s win while repeatedly making claims that the election was subject to rampant voter fraud despite a lack of any evidence.

Other experts, however, said the appropriate remedy is political, not court-ordered.

“While President Trump may have engaged in criminal conduct in this phone call, I think the best interests of the nation would be to avoid traditional criminal prosecution, with the contemplation of imprisonment or something like that,” said Edward Foley, an election law expert and law professor at Ohio State University.

The Washington Post on Sunday published an audio recording of a phone call between Trump and Raffensperger that showed the president asking the secretary of state to “find” the votes needed to overturn the results of the election in Georgia.

“The people of Georgia are angry, the people in the country are angry. And there’s nothing wrong with saying, you know, that you’ve recalculated,” Trump told Raffensperger.

“All I want to do is this,” the president continued. “I just want to find 11,780 votes, which is one more than we have. Because we won the state.”

Officials in Georgia certified Biden as the winner last month and have conducted multiple recounts and audits that confirmed the state’s November election, in which Biden prevailed by about 12,000 votes.

Some Democrats on Monday were calling for a criminal probe into Trump’s actions, while Republicans were again divided, with some criticizing Trump and others defending him.

A pair of House Democrats, Reps. Ted Lieu (Calif.) and Kathleen Rice (N.Y.), sent a criminal referral against Trump to FBI Director Christopher Wray, calling on him to open a criminal probe into Trump’s call with Raffensperger.

“As members of Congress and former prosecutors, we believe Donald Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes,” the lawmakers wrote in a letter Monday. “We ask you to open an immediate criminal investigation into the president.”

An FBI spokesperson confirmed the bureau has received the letter but declined further comment.

Separately, the sole Democrat on Georgia’s five-member state Board of Elections on Sunday asked Raffensperger to task his office with conducting a state-level investigation.

David Worley, in a Sunday email to Raffensperger, said there was a strong probability that Trump’s call ran afoul of Georgia law that prohibits soliciting someone to commit election fraud or interfering with an election official’s duties.

“I don’t want to prejudge any other evidence that might be brought forward by any party,” he told The Hill. “But it seems like there very well may be probable cause that a violation occurred, based on the transcript of the telephone conversation.”

In an interview with The Hill on Monday, Worley said either the secretary of state’s office could investigate the matter or, if there’s a conflict of interest given Raffensperger’s involvement in the phone call, the Georgia Bureau of Investigation or a local district attorney could probe the issue.

In a related development Monday, the district attorney overseeing the Atlanta area said she would “enforce the law without fear or favor” if investigative findings were referred to her office and indicated that Trump’s conduct appeared criminal in nature.

“Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable,” Fulton County District Attorney Fani Willis said in a statement obtained by local outlet WSBTV, adding that she found news reports about the weekend phone call “disturbing.”

Election law expert Rick Hasen argued that Trump should be prosecuted for what he described in Slate as a “shakedown” of Raffensperger, though he said it’s unlikely to come to pass.

“Despite the long odds, I would hope at least Georgia prosecutors will consider going after Trump, or that the House of Representatives might impeach him again with the goal of disqualifying him from running in 2024,” wrote Hasen, a law professor at the University of California Irvine.

“Lack of prosecution or investigation demonstrates that there’s little to deter the next would-be authoritarian—perhaps a more competent one—from trying to steal an election,” he added. “Trump came a lot closer than he should have this time, and next time we may not be so lucky.”

Other experts, including Foley of Ohio State University, agreed that Trump’s behavior should be disqualifying. But he said his preference would be for that punishment to play out through a political process, rather than in the courts.

“The consequence of his misbehavior should be to disqualify him from leadership within his own political party, because no political party should want a leader with such flagrant disregard for the will of the voters — and disrespect for the electoral process, which exists for the benefit of the voters to make their choice,” Foley said. 

“This disqualification should come from the party itself,” he added. “The Republican Party needs to figure out how to repudiate Trump’s denial of electoral reality.”