“Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger”

I have written this piece for Slate. It begins:

President Donald Trump likely broke both federal and state law in a Saturday phone call during which he encouraged Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn the state’s election results. The president certainly committed an impeachable offense that is grounds for removing him from the office he will be vacating in less than three weeks, or disqualifying him from future elected office. His tumultuous term will end as it began, with questions as to the legality of conduct connected to manipulating American elections, and a defense based squarely on the idea that Trump’s mind is so warped that he actually believes the nonsense he spews. Trump may never be put on trial for what he did, but a failure to prosecute him may lead to a further deterioration of American democracy….

Aside from being impeachable conduct, Trump’s actions likely violate federal and Georgia law.  A federal statute makes it a crime when one “knowingly and willfully …  attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by … the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” A Georgia statute similarly provides that a “person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”

For both statutes, the easy part for prosecutors would be proving that there was no basis in fact for Georgia election officials to flip the lead in Georgia to Trump by adding 11,780 votes to his totals, giving him one more vote than Biden’s margin of victory. The ballots in that state have been counted, and recounted both by hand and by machine, and Biden’s victory is certain. And as Raffensperger pointed out repeatedly on the call, every court that has investigated Trump’s fraud claims has found them to be completely spurious. Adding 11,780 votes to Trump’s column—or removing legal Biden ballots—would defraud Georgia voters of the actual outcome they chose. Counting fake ballots or removing lawful ones would deprive Georgia voters of a fair and impartially conducted election process. That is the definition of election fraud.

The hard part for prosecutors would be proving Trump’s state of mind, because the statutes require proof of knowledge and intent. Prosecutors would have to show that Trump knew that Biden fairly won the election, and Trump was asking for Georgia officials to commit election fraud. And it’s not clear prosecutors could make that case.

As with so many things in this presidency and president, the question is whether Trump is drinking his own Kool-Aid. Reading the entire one-hour rambling call transcript, it is hard to know if Trump actually believes the fever swamp of debunked conspiracy theories about the election or whether he’s just using the false claims as a cover to get the political results he wants. It’s not much different than Trump’s statements denying Russian election hacking in 2016, his professed ignorance of the aims of QAnon and the Proud Boys, and whether ingesting bleach can protect against coronavirus. And during the Ukraine impeachment saga, of course, nearly every Republican Senator voted to acquit the president on the implausible basis that Trump was merely asking Ukraine to legitimately investigate Joe Biden for possible criminal conduct rather than seeking to corruptly advance his own electoral interests. In all of these cases, Trump’s conspiratorial rantings display either profound ignorance, deep cynicism, or both.

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