While the path to federal criminal prosecution against the outgoing president is not an easy one, Georgia officials said the state may be considering a serious investigation and the matter has already been referred to the FBI.
“If you look at the statutes, both the federal statutes and the statutes of the state of Georgia, if you engage in any effort to solicit or obtain electoral fraud, and you do it knowingly, this is potentially a federal or state crime,” Preet Bharara, the former US attorney in Manhattan, told CNN on Sunday.
Elie Honig, a former federal prosecutor and CNN contributor, was calling for a criminal investigation into Trump on Monday, arguing that prosecutors at some point could not continue to ignore such shocking statements. Prominent electoral law expert Rick Hasen also wrote on Monday that Trump should be prosecuted or at least investigated.
Proving that the president intended to commit a crime is another matter. Trump would likely face a jury if charged, and prosecutors would need to prove what he meant on the call.
President-elect Joe Biden, who defeated Trump with 306 electoral votes, indicated that he would like the country to move forward instead of insisting on the Trump presidential scandals and leave the decisions to the Justice Department.
The case itself about Trump’s pressure to force a fraudulent Georgia election result, if pursued, would take time and may depend on the parameters of conspiracy laws.
If Trump really won the election and was deceived, proving his intentions to find phantom votes would be a more difficult task for prosecutors in court, Bharara said, although not impossible.
“He was smart enough to be elected, he is smart enough to try to find ways to try to undo the election, even if they are worthless,” said Bharara. “And the fact that he is very specific about the number of votes he needs … That is a very powerful argument that he knows what he is doing.”
The president cannot forgive himself for state crimes. The state of New York has already made it public that it is investigating Trump for business-related crimes, making a state prosecution after Trump leaves the presidency still a possibility in other matters. Trump was not charged with any crime.
Criminal references to the FBI
Two Democratic members of the United States House, Ted Lieu and Kathleen Rice, wrote to FBI director Chris Wray on Monday, asking the agency to immediately open a criminal investigation against the president.
They pointed to the federal criminal code that prohibits electoral fraud or refusing to count valid votes, and Georgia’s state law that describes a crime in the state when one person encourages another to electoral fraud. This state crime is punishable by imprisonment of not less than one or more than three years, according to the Georgia code.
The FBI confirmed that it received the lawmakers’ request and made no further comments. Criminal references to incendiary political moments are relatively common and rarely result in consequences for law enforcement.
A Justice Department spokesman declined to comment on Georgia’s call on Monday.
Some Republicans on Capitol Hill downplayed Trump’s comments about the summons or defended him, although others, like Liz Cheney, who is in the Republican leadership in the Senate, said it was “deeply disturbing”.
With 16 days left for his presidential term and the joint congressional session scheduled for Wednesday to confirm Biden’s electoral victory, a quick impeachment is unlikely. However, Democratic Representative Hank Johnson of Georgia said he plans to come up with a resolution to censor Trump, a largely symbolic move.
Georgia response
Georgia Secretary of State Brad Raffensperger said on Monday that local prosecutors could start an investigation
“I believe that because I had a conversation with the president, I also had a conversation with our chief investigator, after we did the Cobb County signature correspondence audit last week, there may be a conflict of interest,” said Raffensperger in an interview with ABC’s Good Morning America. “I understand that the Fulton County district attorney wants to examine [it], it may be the appropriate place for this. “
Fulton County district attorney Fani T. Willis said in a statement on Monday that she considered the phone call with Trump and Raffensperger “disturbing” and had already received a request to investigate Trump’s actions.
“It is my understanding based on the news that a member of the State Electoral Council has asked the Secretary’s Elections Division to investigate the summons, after which the Council can refer the case to my office and the State Attorney General,” he said. Willis. “I will enforce the law without fear or favor … As soon as the investigation is completed, this matter, like all matters, will be dealt with by our office based on the facts and the law.”
When asked what he was thinking and feeling during the call, Raffensperger said “for the past two months we have been battling a Whac-a-Mole rumor … We believe the truth matters”.
In the field of electoral law, some experts say that if there are criminal consequences for Trump, it will take time. The political consequences, however, are immediate – and, which is unusual, can be assessed by the second round of Georgia’s two-seat Senate election. These elections will decide the majority party in the US Senate.
“Our advice is always not to try to invent or steal votes,” said Ben Ginsberg, longtime electoral lawyer for Republicans and a CNN contributor, on Monday.
Politically, what Trump said “is beyond the pale, beyond the norms, beyond ordinary decency, if not beyond the law.”
As Raffensperger, an elected Republican, clearly rejected what Trump was suggesting he do, Ginsberg said, this could set the stage for Trump to face a heavier political rush.
“The political damage will be much greater than any legal damage, as he will step down in 16 days,” and investigations take time. “You will know the answer on Tuesday night in Georgia and on Wednesday in the polls at the Electoral College,” added Ginsberg.
And while Trump cannot face legal risks, attorney Cleta Mitchell, who participated on behalf of the president of the call, is already being examined for her role in the call.
The large national law firm affiliated with Mitchell has distanced itself from it – an indication that Trump’s request was abhorrent, even in the generally reticent and politically tolerant legal industry.
“Our policy allowed our lawyers to participate in the observation of electoral recounts and similar actions on a voluntary basis in their individual capacity as private citizens, as long as they did not act as legal advisers. Mitchell’s participation in the January 2 conference call and are working to understand his involvement more deeply, “Dan Farrell, spokesman for the Foley & Lardner law firm, Mitchell, who has long championed election fraud, is a partner.
Mitchell did not respond to a CNN inquiry.
CNN’s Devon Sayers and Manu Raju contributed to this report.