Donald Trump has regularly teased incriminating “tapes” of people whom he wanted to discredit; those have never materialized, but we are by now accustomed to tapes of his own perfidy. “Grab ’em by the pussy.” “I would like you to do us a favor, though.” And, now, in a phone call with Georgia’s secretary of state, Brad Raffensperger, “I just want to find eleven thousand seven hundred and eighty votes.” A recording of the call, from Saturday, published on Sunday by the Washington Post, shows that Trump attempted to coerce Raffensperger to “find” enough votes to overturn the results and warned of criminal consequences if the Georgia Republican did not. “I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have,” Trump said. (Biden won Georgia by a margin of eleven thousand seven hundred and seventy-nine ballots.) The President suggested that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.”
On January 20th, the Justice Department’s stance that a President cannot be federally indicted while in office will no longer apply to Trump, so the question of whether he committed a crime is not merely theoretical. Federal election law makes it a crime to “knowingly and willfully” attempt to “deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.” Trump appears to have done just that, by asking Raffensperger to announce a fictitious finding of just enough ballots for Trump to win the state, and backing up this demand with a veiled threat of penalty if Raffensperger doesn’t comply. With the White House chief of staff, Mark Meadows, and the Republican lawyer Cleta Mitchell listening on the call, Trump insisted that the results were “off by hundreds of thousands of votes,” and warned Raffensperger, “You know what they did and you’re not reporting it. 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.” And, for good measure, the President added, “I’m notifying you that you’re letting it happen”—as in, committing the warned-of “criminal offense.” Raffensperger and his general counsel, Ryan Germany, stood their ground, stating that the results were accurate and that Trump did not win.
Prosecutors frequently indict criminal defendants based on far less direct evidence. But a possible stumbling block, as with many potential criminal charges against Trump, is the need for prosecutors to establish the required mens rea—they must show that, in the call, Trump was “knowingly and willfully” proposing to defraud voters, and that he knew the ballots he was telling Georgia officials to “find” and “recalculate” would indeed be “false, fictitious, or fraudulent.” Trump’s troubling mental state and habitual mendacity may well have coalesced and crescendoed to erode any discernible boundary between falsehood and delusion. It’s plausible Trump believes that he really won, or would have won but for fraud. The fact that Trump spoke not in secret but openly, with lawyers and his chief of staff on the call, may suggest that, in his own mind, he was demanding redress of fraud rather than pushing for it. It’s unlikely, though not out of the question, that Georgia prosecutors will have the will to pursue Trump under state law, which makes it a crime when a person “solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage” in election fraud; similar issues regarding Trump’s mens rea would arise in both state and federal prosecutions.
Those doubts aside, the brazenness and timing of the phone call, at a moment when some Democrats are eager to prosecute Trump, present a dare for Biden’s Justice Department to go ahead and do just that. It’s really a poisoned chalice. If there is a federal indictment of Trump, we know that the Biden Administration will be mired in years of distracting and polarizing conflict over the former President, which will keep his election-fraud claims alive. Calls for Trump’s resignation or for a second impeachment based on the new tape are unrealistic, given the short time that remains in his Presidency.
Most urgently, though, let’s not forget that the real focus of Trump’s phone call was who will be declared the elected President of the United States this week in Congress. The outcome is not nearly as open and shut as it should be, given the clear results at every stage of the process: the states’ popular votes, the states’ certifications of those results, the Electoral College’s votes, and courts’ resolutions of scores of meritless lawsuits challenging Biden’s win. More than half of Republicans in the House and nearly a quarter of those in the Senate—including two prominent senators who clerked on the Supreme Court, Ted Cruz and Josh Hawley—have said that they intend to challenge the counting of swing states’ electoral votes for Biden on the floor of Congress, on January 6th. This means that the day’s proceedings will not be perfunctory. Real conflict may ensue. While some of these Republicans have acknowledged that the effort will fail to result in Trump’s reëlection, lawmakers who do not support the effort to challenge votes will need to keep their wits about them.
According to the Electoral Count Act, the fact that states certified their elections and appointed their electors by December 8th, six days before the meeting of the electors, means that those determinations “shall be conclusive.” But what does that mean? There has been little to no occasion for courts to interpret the statute since it was enacted, in the nineteenth century. Republicans could try to object to counting the electoral votes of each state in which Republicans have challenged Biden’s win by claiming fraud, irregularity, or unlawful election procedures. If Republicans were to attempt to drag out the January 6th joint session by objecting to individual states’ electoral votes one by one, and thereby triggering the two houses’ separate, hours-long debates on each of them, then it is possible, though unlikely, that the business of counting the votes wouldn’t be concluded in five days, at which point the Electoral Count Act says that the recesses for debating objections to votes must end.
At that point, the electoral votes that have been officially counted for Biden might not yet have reached the threshold of two hundred and seventy votes. At such a juncture, it is possible that some Republicans might attempt a maneuver to abuse the process provided in federal law, by insisting on reverting to the Twelfth Amendment’s provision that, if no candidate has a majority of electoral votes, “the House of Representatives shall choose immediately, by ballot, the President.” This amendment says that, in the House, “the votes shall be taken by states, the representation from each state having one vote”—that is, each state casts its vote as a delegation. That could well result in Trump’s reёlection, because there are more Republican than Democratic state delegations in the House, even though Democrats have a majority of representatives there. Such an outright destruction of democracy by our elective representatives would make the question of Trump’s criminal liability seem like small potatoes. But, of course, his democracy-belittling behavior, cavalier and persistent, tolerated and reinforced by members of his party over time, is what has made it possible to even envision such an unlikely calamity occurring.
This week is the real and true test of Congress’s commitment to democracy, as our representatives are called to do their duty to confirm the people’s election of the President. It is also a week in which all ten living former Secretaries of Defense have taken the remarkable step of issuing a preëmptive rebuke to Trump’s possible “efforts to involve the U.S. armed forces in resolving election disputes.” They warned, in an op-ed published in the Post, on Sunday, that officials “who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.” That same day, the homes of House Speaker Nancy Pelosi, in California, and Senate Majority Leader Mitch McConnell, in Kentucky, were both vandalized with graffiti, and a pig’s head was left at Pelosi’s house. Whatever lurid message was intended, it underscored the real need to hope that what happens this week, on the floor of Congress and in the streets, does not portend the savage devolution of self-government that the pig head represents in “Lord of the Flies.”
Read More About the Presidential Transition
- Donald Trump has survived impeachment, twenty-six sexual-misconduct accusations, and thousands of lawsuits. His luck may well end now that Joe Biden is the next President.
- With litigation unlikely to change the outcome of the election, Republicans are looking to strategies that might remain even after rebuffs both at the polls and in court.
- With the Trump Presidency ending, we need to talk about how to prevent the moral injuries of the past four years from happening again.
- If 2020 has demonstrated anything, it is the need to rebalance the economy to benefit the working class. There are many ways a Biden Administration can start.
- Trump is being forced to give up his attempt to overturn the election. But his efforts to build an alternative reality around himself will continue.
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Jeannie Suk Gersen
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