Could that Phone Call Asking a GA Official to “Find” Votes Land Trump in Prison?

Trump’s long campaign to overturn the results of the election in Georgia are now part of a criminal investigation by the Fulton County District Attorney, Fani T. Willis, whose name will likely be in the news a great deal in the near future.

Fulton County DA Fani T. Willis has launched a wide-ranging investigation into election interference by Trump and his allies. Photo: Nicole Craine for the NYT

Many have asked what the chances are that this investigation will result in any charges, and what those charges might be.

So let’s review.

Willis recently sent letters to several Georgia GOP officials, including Governor Brian Kemp, Secretary of State Brad Raffensperger, and Attorney General Chris Carr asking them to preserve evidence. Willis stated that her office is considering numerous charges related to attempts to influence the 2020 election in the state. They run a wide possible gamut: soliciting election fraud, false statements to government officials, criminal conspiracy, oath of office violations, racketeering, and violence associated with threats to the election process.

Willis will be examining three specific communications Trump made to state officials, but also his campaign’s contacts with the GA General Assembly, which held hearings where Rudy Giuliani and others made false and unsupported allegations of election fraud. In addition, her office will be examining the circumstances around the sudden resignation of the U.S. Attorney in Atlanta as well as Senator Lindsey Graham’s call to Raffensperger.

I want to focus on what I believe is the clearest case Willis has for a criminal charge against Trump: solicitation of election fraud. I say “clearest” because there is actual recorded evidence of Trump’s call to Raffensperger on January 2, in which Trump appears to ask Raffensperger to perform illegal acts, then follows that up with a veiled threat. (Although Trump made two other calls, one around Christmas time to an election investigator to “find the fraud” and become “a national hero,” and an earlier one to Governor Kemp to get the election result overturned, there aren’t known recording of those calls, and the nature of the requests was not as questionable as the January 2 call. So in my mind, those are helpful, added context, but they don’t carry the punch of the January 2 Raffensperger call.)

Let’s first look at the specific law at issue here. Solicitation of election fraud is governed by its own statute, GA Code Sec. 21-2-604 (2016), which states,

(1) 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.

The penalty for violation of this law carries a sentence of “imprisonment for not less than one nor more than three years.” The stakes are indeed high for the former president.

In the hour-long January 2 call, Trump told Raffensperger to “find” the votes Trump needed to reverse the election outcome in the state. Specifically, he told Raffensperger to recalculate the vote count so that Trump would end up winning the state’s 16 electoral votes: “I just want to find 11,780 votes, which is one more than we have.” This on its face appears to satisfy the element that the defendant (Trump) solicited or requested or attempted to cause another person (Raffensperger) to commit election fraud.

Trump followed this rather alarming request with a vague threat: “You know what they did and you’re not reporting it,” Trump said during the call. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”

Trump went on to say, “The people of Georgia are angry, the people of the country are angry. And there’s nothing wrong with saying that, you know, um, that you’ve recalculated.”

Raffensperger rejected Trump’s request and affirmed the election results in his state, insisting that Trump had heard false information about voter fraud.

Listen to the audio recording here.

While on its surface this sounds pretty bad for Trump, he is also a master of throwing just enough dirt to muddy the waters. The call lasted over an hour, and like his rambling speech at the January 6 “Stop the Steal” rally, it contained ambiguous contradictions that, Trump could argue, it demonstrates it wasn’t his intent to ask Raffensperger to manufacture false votes. For example, Trump noted that there was “nothing wrong” with Raffensperger saying he had “recalculated” the tally, and therefore he could argue that he couldn’t have been asking him to perform an illegal act. Weighed against this is Trump’s use of very specific vote counts and his desire that they “find” just one more vote than he needed to win in that “recalculated” tally. The prosecution would argue there is no reasonable way to conclude Trump wanted him to “find” such votes in a legal manner.

Trump could also argue that, while he clearly implied Raffensperger might suffer legal consequences if those additional votes were not found, Trump didn’t actually say that he himself would make good on those threats. Trump could claim, for example, that he meant the law would enforce consequences that Raffensberger wouldn’t like. And that’s not illegal.

What Trump actually intended, based on the entire context of the call, is ultimately a question for a jury or a judge to determine. Willis’ investigation is no doubt hoping to unearth more evidence of Trump’s intent, especially with reckless characters like Giuliani having been deeply involved in efforts to pressure Georgia lawmakers. “An investigation is like an onion,” Willis said to the New York Times. “You never know. You pull something back, and then you find something else.” She added, “Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.”

There’s another hurdle, of course, and that is whether a local DA in Georgia can actually force an ex-president to come answer for crimes in that state. If Trump ignores or refuses to cooperate, it will set off some interesting jurisdictional issues, including whether Florida would ever extradite Trump to Georgia. But let’s not get ahead of ourselves. The first question here is whether charges will be brought after the investigation progresses. Stay tuned.

Some resources:

https://www.washingtonpost.com/politics/in-wake-of-trump-calls-to-state-officials-georgia-prosecutors-open-criminal-investigation-into-efforts-to-subvert-election-results/2021/02/10/17709bd0-6bb3-11eb-9f80-3d7646ce1bc0_story.html

https://www.nytimes.com/2021/01/03/us/politics/trump-call-georgia.html