Last updated on January 7, 2021
“Trump at this point should welcome someone using the 25h amendment, an insanity defense is about all he has left.”
Trump’s best defense could be insanity or ignorance.
Four criminal laws that Trump may have violated
There is no evidence that Georgia lost or otherwise miscounted its ballots, a point that Raffensperger made repeatedly during the call. So, in pressuring Raffensperger to “find” nearly 12,000 fake votes, Trump seemingly attempted to deprive the residents of Georgia of a fair and impartial election, and he did so by trying to procure false, fictitious, or fraudulent ballots.
Still, this statute requires federal prosecutors to prove that Trump had a particular state of mind when he pressured Raffensperger to rig the election. To convict Trump, prosecutors would have to prove that the outgoing president sought to have ballots counted that were “known by [Trump] to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.”
Thus, Trump’s lawyers could argue that Trump genuinely believed the various conspiracy theories that he touted during his call with Raffensperger, and that Trump thought there actually are thousands of lawful ballots that Raffensperger could “find.” To overcome this argument, prosecutors would have to prove, beyond a reasonable doubt, that Trump knew he lost the election and that any “found” ballots would be fraudulent.
If Trump were convicted under this statute, he could be imprisoned for up to five years.
Another federal law makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Trump was joined on the call by White House Chief of Staff Mark Meadows and at least two lawyers. Thus, to the extent that he conspired with them to attempt to strip even a single Georgia voter of a constitutional right to vote, Trump could potentially be imprisoned for up to 10 years.
Georgia state law may also criminalize Trump’s attempt to overthrow an election. The state’s law makes it a crime to willfully tamper “with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine.” And while Trump did not directly tamper with the vote count in Georgia, state law also makes it a crime to, “with intent that another person engage in conduct constituting a felony,” solicit another person to commit such a felony. A person convicted of soliciting a felony in Georgia “shall be punished by imprisonment for not less than one nor more than three years” (although the penalty can be higher if they solicit a crime punishable by life in prison or by death).
Georgia law also specifically makes it a crime to engage in “criminal solicitation to commit election fraud.”
Another federal law makes it a crime to “willfully fail or refuse to tabulate, count, and report such person’s vote,” although it is less likely that Trump could be prosecuted under this statute. While Georgia law makes it a crime to solicit another person to commit any felony, federal law only criminalizes solicitation of a “felony crime of violence” — meaning that the crime must involve “the use, attempted use, or threatened use of physical force against property or against the person of another.”
Certainly, however, prosecution for any of the crimes potentially committed during the call would be a difficult undertaking. Like many crimes of corruption, those related to election tampering require specific intent — the mens rea. Unless Trump were to admit that he intended to illegally interfere with election results, there would be no direct evidence about his state of mind. Other contextual evidence that would support the inference that Trump had illegal intent, for instance, would be Trump saying behind closed doors knowing and admitting that he had lost the election.
As we’ve discussed before, prosecutors will often present evidence of a defendant’s actions and argue that fact-finders can infer that defendant’s state of mind based on that contextual information. Here, the argument would be that a judge or jury must infer that Trump intended to falsify election results.
Such an inference might seem obvious to many, particularly given Trump’s shockingly complete refusal to accept defeat. Still, Trump’s state of mind would be an impediment to an prosecutor who needs to prove intent beyond a reasonable doubt.
Law&Crime has put together the following list of possible crimes that line up with Trump’s actions during the call. Each would require proof of Trump’s corrupt intent, and each would present similar difficulty in proving that particular element.
Of course, any decision to prosecute President Trump for any potential crimes committed during the Raffensperger call would be a complex and political one that could rest primarily with the Biden administration, depending on how Georgia authorities handle the matter. As any seasoned law enforcement professional can attest, the commission of a crime and the prosecution of that crime are different things entirely.
As former Inspector General Bromwich and others have pointed out, Trump’s best defense could be insanity or ignorance. Should the president make a convincing showing that he was unable to form the requisite intent due to mental defect, he might find himself in possession of a potent legal defense. Similarly, the president could argue that he was coherent, but so uninformed as to reality that he lacked the knowledge necessary to render his requests improper. Prior to 2020 and 2021, it might have been difficult to imagine a sitting president making such arguments in his own defense, but here we are.
“There's nothing wrong with saying, you know, um, that you've recalculated.”
Vice President Pence has reportedly informed President Trump that he does not have the authority to challenge the results of the 2020 election, despite the president's efforts to protest President-elect Joe Biden's win.
Pence told the president Tuesday during their weekly lunch that he does not have the power to block a congressional certification of the Electoral College results, The New York Times reported.
The meeting reportedly came hours after Trump falsely claimed on Twitter that the vice president “has the power to reject fraudulently chosen electors.” Trump said at a rally in Georgia the previous night that he hoped Pence would “come through for us” during the Wednesday certification of Biden’s Electoral College win.
If Trump is truly delusional, and really believes there's 1000s of uncounted Trump votes, or 1000s of fake Biden votes, pressuring state officials to turn those delusions into reality is no more OK than if he knows they're false.
— Reader (@RFStephen8) January 4, 2021
— John Aravosis 🇺🇸🇬🇷🏳️🌈 (@aravosis) January 6, 2021
— Keith Olbermann (@KeithOlbermann) January 6, 2021
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