At noon on January 20, 2021, Donald Trump will cease to be President of the United States, unless you hear him tell it.
Trump continues to insist that he won the election – he didn’t – and has been continuously placing pressure on state and federal officials to overturn the results of the election and declare him the winner. On Sunday, The Washington Post published audio and analysis of an outrageous phone call by Trump to Georgia Secretary of State Brad Raffensperger, in which Trump spent an hour spouting conspiracy theories and pressuring the Georgia official to use his power to reverse the results of Joe Biden’s win in Georgia.
In addition to being a blatant attack on our democracy, many have speculated that Trump’s call was also criminal. In fact, Trump may have violated a number of federal and state laws, which is impressive for one call.
Here are five ways President Trump may have committed criminal offenses during the call.
1. "Finding" votes can easily be considered federal election fraud
A number of commentators and legal scholars have pointed out that Trump appears to have violated federal law 52 U.S. Code § 20511. Michael Bromwich, the former Inspector General for the Justice Department under President Bill Clinton, tweeted on the issue:
Unless there are portions of the tape that somehow negate criminal intent, "I just want to find 11,780 votes" and his threats against Raffensperger and his counsel violate 52 U.S. Code § 20511. His best defense would be insanity.https://t.co/ZAtRgiRQmz
— Michael R. Bromwich (@mrbromwich) January 3, 2021
"Unless there are portions of the tape that somehow negate criminal intent, 'I just want to find 11,780 votes' and his threats against Raffensperger and his counsel violate 52 U.S. Code § 20511," Bromwich wrote. "His best defense would be insanity."
This federal election law states that it is a crime if an elected official “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process” such as by “the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the state in which the election is held.”
In other words, when Trump asked Raffensperger to “find 11,780 votes, which is one more than we have” – referencing the 11,779 vote margin by which he lost to Biden in Georgia – the president was clearly asking for “fictitious or fraudulent” ballots. Violating this law is punishable by a fine and up to five years in prison.
2. Interfering with a presidential election is just wildly illegal
Trump has routinely used his position as president to benefit himself; for example, by channeling foreign dignitaries to stay at the hotel he owns in Washington, D.C. But in the specific case of this weekend’s Georgia call, it turns out that when the president “uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector” or other top offices, he’s violating 18 U.S. Code § 595 and potentially exposing himself to an additional fine and up to one more year in prison.
This isn’t even the first time that Trump may have violated this particular law; Washington University at St. Louis law professor Kathleen Clark accused Trump of breaking this law in August 2020 when he participated in the naturalization ceremony of 10 new American citizens and broadcast the tape of the proceedings as part of the Republican National Convention.
Trump just committed a crime, violating 18 USC § 595, prohibiting "a person employed in any administrative position" from using "his official authority for the purpose of … affecting … the nomination or the election of any candidate for the office of President" https://t.co/MwgVJbEf2r
— Kathleen Clark (@clarkkathleen) August 26, 2020
3. Ganging up to intimidate an elected official is a criminal conspiracy
Trump made a number of veiled threats against Raffensperger, such as indicating that the Secretary of State and his office’s lawyer on the call, Ryan Germany, were committing “a criminal offense” by allowing a fraudulent result to stand and saying that the Georgia officials were taking “a big risk” by not giving in to Trump’s demands.
Such remarks led former Deputy Solicitor General of the United States Neal Katyal to compare Trump to a mob boss shaking down an extortion victim.
"This is the way that people in organized crime rings talk," @neal_katyal says of President Trump's language in his call trying to pressure Georgia's secretary of state to overturn the election results. pic.twitter.com/bnmxYY38as
— MSNBC (@MSNBC) January 3, 2021
The comparison to organized crime may be legally relevant. Though Trump did most of the talking during his hour-long call, he wasn’t alone in his efforts. Joining in on the president’s side of the call were White House Chief of Staff Mark Meadows and several lawyers, most of whom chimed in at times to back up the president’s requests. As anyone knows who has watched a good legal drama or seen The Dark Knight for that matter, several people cooperating to commit a crime opens them all up to charges of conspiracy.
Specifically, Trump and his co-conspirators may have violated 18 U.S. Code § 241, which applies when “two or more persons conspire to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” In other words – particularly the words of The Wire’s Stringer Bell, Trump and company didn’t realize that Raffensperger was “taking notes on a criminal f**king conspiracy.”
This particular conspiracy brings a punishment of up to ten years in prison.
4. Election fraud is also illegal in Georgia
There has been speculation that Trump may pardon himself before he leaves office for any crimes he may have committed during his presidency. Alternatively, because self-pardons may not actually be legal, he may resign and allow current Vice President Mike Pence to temporarily become president long enough to pardon Trump.
Such a move, if it happens and is upheld by the courts, would protect Trump from federal charges, but presidential pardons do not cover state charges. Unfortunately for Trump, his call likely also broke Georgia state law. Specifically, GA Code § 21-2-604 (2016) makes “criminal solicitation to commit election fraud” a crime punishable by up to three years in jail.
So even if Trump skates on federal law, he could theoretically end up in a Georgia state prison.
5. The impeachable "high crime" offense
Trump was impeached in late 2019 for a phone call, in which he attempted to pressure the President of Ukraine to “do us a favor” and launch an investigation against Joe Biden’s son, Hunter, concerning the younger Biden’s business dealings in that country. Trump threatened to withhold military aid that Ukraine needed for its conflicts with Russia unless Ukrainian President Volodymyr Zelensky announced an investigation into Hunter, which presumably would have created controversy for his father – we later saw Trump attempting to revive this “scandal” in the last weeks of the 2020 campaign.
When Trump was impeached for using the office of the president to attempt to extort a foreign leader for Trump’s own political gain, Democrats warned that if Trump was acquitted, “he will continue to try to cheat in the election until he succeeds.”
Now that he’s carried out a similar phone call, except this time to an American government official and asking to directly change the result of an election, a number of scholars and political figures are calling for Congress to impeach Trump again. The U.S. Constitution allows for the president to be impeached for “treason, bribery, or other high crimes and misdemeanors,” and many legal scholars believe that interfering with an election qualifies as the latter.
It may seem useless to impeach Trump days before he leaves office anyway, and conviction on any impeachment charge would be unlikely since it would require the cooperation of a number of Senate Republicans to get the two-thirds majority necessary to convict. But impeachment would serve as a potential deterrent against future presidents attempting to interfere with their own or other elections. And if Trump was actually convicted, the Senate could also bar him from holding office again, which would prevent him from being able to run again in 2024, as he’s signaled he might do.
In short, Trump, a man who has spent much of his life and presidency avoiding the legal and ethical consequences of his actions, may have landed himself in deep trouble during the final days of his presidency. We’ll see in the coming weeks and months whether he will be able to yet again escape legal trouble once he no longer has the power of the presidency behind him.