Donald Trump is a dangerous and dishonest man, and I'd be happy to see him punished if it is determined he's committed a crime.
But I wonder how easy it's going to be to prosecute him for asking the secretary of state of Georgia to "find" 11,780 votes.
That's his famous statement, remember? Some consider it a smoking gun. "I just want to find 11,780 votes, which is one more than we have," he said on a call with Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021.
Trump's meaning was perfectly clear: Find me enough ballots to put me just one vote ahead of my opponent. Overturn my defeat. The official tally had Joe Biden winning Georgia by 11,779 votes.
That "find me" line has been quoted exhaustively. The Los Angeles Times earlier this week called it "one of Trump's most glaring legal vulnerabilities." The New York Times on Wednesday called it "a focal point" of the inquiry by the special grand jury in Georgia that recently filed its final report. And the grand jury's forewoman said this week: "We definitely started with the first phone call, the call to Secretary Raffensperger that was so publicized."
Lawyers Fred Wertheimer and Norman Eisen have said this is "a simple case" for prosecutors. Trump, they wrote, was asking Raffensperger to "rig the result."
We don't know yet whether the special grand jury has recommended charging Trump or, if it has, whether the Fulton County district attorney will agree.
But I don't think the case is as simple as it sounds.
In situations like this one, prosecutors generally need to prove intent. In this instance they would presumably need to persuade jurors that Trump knew he was asking Raffensperger to cheat or to commit fraud or to meddle with legitimate election results. That's what I'd want to find out if I was a juror.
But here's the problem: Everything Trump said on the call suggests he was merely asking for a wrong to be righted and that he truly believed — correctly or not — the votes had been stolen from him.
He seemed to believe that some 5,000 dead people had voted, that there were hundreds of thousands of forged signatures in Fulton County alone, that vote "scammers" and out-of-state residents had voted while legitimate ballots had been shredded.
"They cheated like nobody's ever cheated before," Trump told Raffensperger.
I'm not saying his allegations have the slightest bit of merit. They do not. Nor am I saying that Trump believed what he said on the call. It could all be a big lie.
But if you take his words at face value, they suggest that he thought he'd been robbed and wanted Raffensperger to make things right, not that he was intentionally soliciting Raffensperger to commit election fraud.
That's why Trump has referred to it as — you guessed it! — "a PERFECT call."
Eisen, a senior fellow at Brookings (and co-counsel at Trump's first impeachment trial), has argued that Trump can still be convicted even if he believed what he was saying. But I wonder about that. I suspect some jurors would be reluctant to convict him if they thought he was merely raising sincere objections.
So does that mean a case can't be made against Trump based on the call? Not at all, but it may be more complicated than merely using Trump's own words against him. I talked to several election law experts and they indicated that prosecutors would have to move beyond the call itself and explain to jurors the context in which it was made.
By Jan. 2, 2021, there had already been counts and recounts and audits and investigations and lawsuits, not just in Georgia but all around the country. Trump had been told repeatedly that there were no indications of fraud (at a level that could affect the outcome) and that his conspiracy theories were without merit. Yet he continued his "Stop the Steal" campaign to overturn the legitimate election results.
Trump was directly involved in trying to convince Georgia officials to put together an alternate slate of pro-Trump presidential electors, even after Biden's win had been re-certified by the state's Republican leaders.
"The guy is a professional liar," said Richard Hasen, an election law expert at UCLA law school. "You can't assess his credibility just by listening to his words on the call. You can't look at that one statement in isolation. You have to look at the entire picture: He was deeply engaged in a multi-state, multi-pronged attack on the election results and the conversation with Raffensperger was just one part of it."
Justin Levitt, an election law expert at Loyola Law School, agreed.
"It's true that if all you have is evidence of fervent advocacy or real mistaken belief, that's usually not the basis for a criminal charge," he said. "But there's a lot of context that goes into every prosecution."
Levitt said Trump had been presented with evidence that there had been no "steal." He noted that the call came only four days before Congress was to certify Biden's victory.
Furthermore, in what was basically a back-channel call to Raffensperger, Trump applied enormous, inappropriate pressure, including telling Raffensperger there was a "big risk" — by implication, of criminal charges — if he failed to unearth 11,780 fraudulent votes.
By Jan. 2, no reasonable person should have believed the election had been rigged — especially not someone who had been repeatedly told the facts.
I highly doubt Trump believed the bunkum he was peddling. He just wanted Georgia's electoral votes.
That's what prosecutors would need to prove if they bring a case. Would they succeed? The jury's still out.
____
