Trump’s Georgia Phone Call Was Likely a Crime, But Prosecution is Uncertain

Interview with Jeannie Suk Gersen, John H. Watson Jr. professor of law at Harvard Law School, conducted by Scott Harris

In President Donald Trump’s ongoing effort to subvert U.S. democracy, he placed a call to Georgia Secretary of State Brad Raffensperger on Jan. 2, and pressured him to “find” enough votes to overturn Joe Biden’s win in the state’s presidential election. In the hourlong recorded conversation Trump, cited false claims of fraud and the shredding of thousands of ballots, and then threatened Raffensperger with a “criminal offense” if officials he failed to change the state’s vote count.

Democratic members of Congress variously responded to Trump’s phone call by demanding an FBI investigation, impeachment and censure. Fani Willis, the newly-elected district attorney of Georgia’s Fulton County, said her office stands ready to prosecute Trump for his conduct in the phone call. The uproar over Trump’s latest illicit effort to overturn the election, came as 140 Republican members of the House and at least a dozen GOP U.S. senators vowed to object to the Jan. 6 certification of the Electoral College’s December vote that confirmed Trump’s re-election defeat. Trump called on his supporters to come to Washington on Jan. 6 to protest the certification of his election loss.

Between The Lines’ Scott Harris spoke with Jeannie Suk Gersen, John H. Watson Jr. professor of law at Harvard Law School, who discusses Trump’s exposure to criminal charges from his Georgia phone call and the ongoing threat to the nation’s democracy posed by the president and his Republican party supporters.

JEANNIE SUK GERSEN: Many federal prosecutions for many different kinds of federal crimes have proceeded on much less evidence than what we have here, which is a direct recording of the potential defendant specifically saying the things that make out potentially the elements of the crime. And then it’s a matter of proving the different elements. But for example, the federal election law that we would be talking about, it’s one that makes it a crime to knowingly and willfully attempt to deprive or defraud state residents of a fair and partially conducted election process. And that is what he appears to be doing in speaking with the secretary of state of Georgia and basically suggesting that he find a certain number of votes.

And he says, specifically, I need this number of votes, which is one more than what the margin is between him and Joe Biden. So, because the statute says if you knowingly and willfully attempt to do that, to attempt to deprive and defraud people of a impartial fair election by tabulating ballots that are known to be materially false, fictitious or fraudulent, that’s what the prosecution would have to prove.

Now, the problem here is that it might be that Trump, you could argue and certainly his defense would argue — that he did not think that he was asking or demanding for anything fraudulent or false to occur. That’s a factual question about whether Trump knew that what he was asking for or demanding was for fraud. I think that that’s where it comes down to a matter of what you think about the president’s mental state. And that in itself, even though it’s a legal and factual question, I am sure is going to be very polarized and divided based on who you are and how you see this president.

SCOTT HARRIS: What kind of jeopardy is our democracy in as we stand here on the cusp of the inauguration on Jan. 20. There have been so many unprecedented steps that not only Donald Trump has taken in terms of contesting what is objectively judged as a fair and free election on Nov. 3, but also a large number of elected officials in the Republican party are similarly taking the same stance that this was a fraudulent election and that Donald Trump deserves a second term, despite the facts. What’s the danger do you think we are encountering here right now and in the long term, what kind of rough seas is our democracy going to encounter?

JEANNIE SUK GERSEN: The idea that it’s not just Trump and not just his White House, but half — more than half of the Republicans in the House of Representatives and almost a quarter of the Republican senators are planning to object to electoral votes for Biden. They have made clear that that is what they are going to do. And I understand that that, with one side of their mouth, some of them may be saying, Well, this is not really going to work. We don’t expect it to work. Really, this is playing with fire, that there’s an election result, and we have really significant numbers of one party, the losing party actually saying they’re going to make an organized effort to object to electoral votes. I really do think that we need to keep our eyes peeled.

SCOTT HARRIS: Professor Garrison, what are a few of the most important things you think we need to do as a nation to strengthen our democracy and our institutions that were exposed as being very vulnerable to abuses of power that we’ve seen unfold in these last four years of the Trump administration?

JEANNIE SUK GERSEN: Well, you probably won’t like this answer. But there’s going to be a lot of efforts to look back in the rear view mirror and say, “Oh, we didn’t have a law for that. And we’d have a law for that. We need to pass a law for that. We need to pass a law for that. There were all these loopholes or these gaps in law.” But what I ultimately think is that no amount of law is going to be able to cover the possibility of elected officials abusing their power, if they’re bent on doing so. And ultimately, you know, “Good, sure we can fill in some gaps and say, ‘Oh, we didn’t think of that. We didn’t think of that.'”

But ultimately the only safeguard is for people to become more informed and more active in how they live out their political lives. And I think the intense voter turnout and engagement that we saw in the past season, even though it did not necessarily prove to be kind of a landslide in favor of Joe Biden or the Democratic party, I think that ultimately that’s about as good an answer as we have that people should be more engaged, informed themselves. All kinds of people voted in this election that previously would have been more apathetic. And you know, that’s a mixed bag. But ultimately, people do deserve the government they get.


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