Trump’s call could put president in danger, legal experts say

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While the path to a federal criminal case against the outgoing president is not easy, Georgian officials said the state may consider a serious investigation and the case has already been referred to the FBI.

“If you look at the statutes, federal statutes and statutes of the state of Georgia, if you engage in an effort to solicit or obtain electoral fraud, and you do so knowingly, it is potentially a federal crime or of State, “Preet Bharara, the former US attorney in Manhattan, told CNN Sunday.

Elie Honig, former federal prosecutor and CNN contributor, urged a criminal investigation of Trump on Monday, arguing that at some point prosecutors could not continue to look past these shocking statements. Prominent election 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 have to prove what he meant on the appeal.

The lawsuits against former presidents in the United States are unheard of in modern times, and the presidency has immense power that protects Trump. The Justice Department had previously avoided approaching Trump’s accusation of obstructing the Mueller investigation and after his call for Ukraine for political help, which led to the president’s impeachment.

President-elect Joe Biden, who beat Trump with 306 electoral votes, has indicated that he wants the country to move on other than dwelling on the scandals of the Trump presidency and leave the decisions to the Justice Department.

CNN previously reported that Trump had explored the possibility of self-forgiveness, although that could only give him immunity from federal crimes. The Justice Department had previously ruled that a president could not forgive himself, but could temporarily empower his vice president to do so – but there is no indication that this would happen.
House Republicans rush to defend Trump against Georgia call as Democrats prepare censure resolution

The case itself regarding pressure from Trump to force a fraudulent election result in Georgia, if pursued, would take time and could depend on the parameters of conspiracy laws.

If Trump actually won the election and was cheated, proving his intention to find shadow votes would be a more difficult task for prosecutors in court, Bharara said, but not impossible.

“He was smart enough to get elected, he is smart enough to try to find ways to try to overturn the election, even if it won’t be worth anything,” Bharara said. “And the fact that he’s very specific about how many votes he needs … that’s a pretty powerful argument that he knows what he’s doing.”

The president cannot forgive himself for state crimes. New York state has already made public that it is investigating Trump for corporate crimes, making a state charge after Trump stepped down as president, yet another possibility on other matters. Trump has not been charged with any crime.

Criminal referrals 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 into the president.

They highlighted the federal penal code that prohibits voter fraud or refusal to count valid votes, and Georgia state law that describes a crime in the state when one person encourages another person to defraud an election. . This state crime carries a jail term of at least one and more than three years, according to Georgia’s code.

The FBI confirmed receiving the request from lawmakers and did not comment further. Criminal referrals for inflammatory political moments are relatively common and rarely have law enforcement consequences.

Yet the FBI and the Justice Department have already taken this route, following Trump’s call with Ukrainian President Volodymyr Zelensky. After Trump called on Ukraine to investigate his then opponent, Biden, the FBI, and the Justice Department received multiple criminal referrals from lawmakers and even other parts of the executive. . But the Justice Department, then headed by Attorney General William Barr, quickly rejected opening an investigation into the president, after having department staff analyze the possibility of a campaign finance violation. . Congress, instead, picked up on the issue, impeaching Trump for abuse of power.

A spokesperson for the Department of Justice declined to comment on Georgia’s appeal on Monday.

Some Republicans on Capitol Hill played down or defended Trump’s remarks on the call, although others, like Liz Cheney, who is in the Republican Senate leadership, said it was “deeply disturbing” .

With 16 days into his presidential term and the joint session of Congress scheduled for Wednesday to confirm Biden’s electoral victory, a quick impeachment is unlikely. However, Democratic Representative Hank Johnson of Georgia has said he plans to introduce a resolution to censor Trump, a largely symbolic move.

Georgia’s response

Georgian Secretary of State Brad Raffensperger said on Monday that local prosecutors could open an investigation

“I believe because I had a conversation with the President, also had a conversation with our chief investigator, after we did the Cobb County signature match audit last week, there may be a conflict of interest, ”Raffensperger said in an interview with ABC Good Morning America. “I understand the Fulton County District Attorney wishes to review [it], maybe this is the appropriate place for it. “

Fulton County District Attorney Fani T. Willis said in a statement Monday that she found the phone call with Trump and Raffensperger “disturbing” and had already received a request for an investigation into Trump’s actions .

“I understand from press reports that a member of the State Election Commission has requested that the Secretary’s Elections Division investigate the appeal, after which the Commission may refer the matter to my office and to the state attorney general, “Willis said. “I will apply the law without fear or favor … Once the investigation is completed, this matter, like all cases, will be handled by our office on the basis of the facts and the law.”

Raffensperger also said in the interview that he did not feel rushed by Trump when he asked him to recalculate the votes that made Biden the winner in Georgia.

When asked what he thought and felt during the call, Raffensperger said: “For two months we have been fighting a Whac-a-Mole rumor … We think the truth matters.”

In the field of electoral law, some experts say that if there is criminal fallout for Trump, it will take time. The political fallout, however, is immediate – and, exceptionally, can be measured by the upcoming second round of elections for two Georgia Senate seats. These elections will decide the majority party in the US Senate.

“Our advice is always not to try to invent or steal votes,” Ben Ginsberg, longtime electoral lawyer for Republicans and CNN contributor, said Monday.

Politically, what Trump said “goes beyond the pale, beyond the norms, beyond common decency, if not beyond the law.”

Because Raffensperger, an elected Republican, clearly refused what Trump suggested he do, Ginsberg said, it could set the situation up for Trump to face heavier political fallout.

“The political damage will be far greater than any legal damage since he will be leaving office in 16 days,” and investigations take time. “You will know the answer Tuesday night in Georgia and Wednesday during the electoral college votes,” Ginsberg added.

And while Trump is not threatened with justice, lawyer Cleta Mitchell, who participated on behalf of the president on the appeal, is already under surveillance for her role in the appeal.

The large national law firm affiliated with Mitchell distanced itself from her – an indication that Trump’s request was heinous even in the generally reluctant and politically tolerant legal sector.

“Our policy has allowed our lawyers to participate in the observation of electoral counts and similar actions on a voluntary basis as private citizens as long as they have not acted as legal advisers. We are aware of and concerned about Ms. Mitchell’s attendance at the Jan. 2 conference call and are working to better understand her involvement. Dan Farrell, spokesperson for the law firm Foley & Lardner, Mitchell, who has long been pressured into electoral fraud without merit, is a partner.

Mitchell did not respond to a CNN request.

CNN’s Devon Sayers and Manu Raju contributed to this report.

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