GeorgiaAmid the seemingly endless stream of news that underlies America’s currently tumultuous political climate, you would be forgiven for missing (or simply forgetting) the fact that President Trump may have a serious Georgia problem.  No, we are not merely referring to the results of the recent Presidential and Senate runoff elections, which demonstrated a momentous political shift in favor of the Democratic Party in the historically conservative state.  President Trump’s most pressing Georgia problem is instead that he and his aides potentially face post-Presidential criminal consequences for their attempts to influence the state’s administration of the Presidential election.

A steady drip of news stories has illuminated that President Trump and others made multiple potentially improper contacts with Georgia election officials in the aftermath of the November 3 election.  Before analyzing their potential criminal exposure, let’s review the timeline as established by public reporting:

The Chronology

The first indications of potential outside influence on the Georgia Presidential election results came in mid-November 2020, when reports began circulating that Senator Lindsey Graham of South Carolina, “one of Mr. Trump’s closest allies on Capitol Hill,” had reached out to Georgia Secretary of State Brad Raffensperger and suggested that Raffensperger disqualify certain absentee ballots.

Then, on December 5, news broke that President Trump had called Georgia Governor Brian Kemp to “urge him to persuade the state legislature to overturn President-elect Joe Biden’s victory in the state and… to order an audit of absentee ballot signatures.”  Kemp had indicated publicly, before and after the call, that he lacked the power to order such a move but did request that Secretary of State Raffensperger conduct an audit.

In fact, Raffensperger did launch an audit of certain absentee ballots in Cobb County which, on December 29, resulted in a determination that there was no fraud.  We now know, however, that President Trump and others made several additional contacts with Georgia officials while that audit and other election-related investigations were pending.

On December 22, the President’s Chief of Staff, Mark Meadows, made a “surprise visit” to Cobb County to observe the audit and to “ask questions about the process.”  Meadows was not allowed to enter the room where the audit was being performed.

The next day, December 23, President Trump called Georgia’s election investigations chief, reportedly asking that individual – who remains undisclosed – to “find the fraud” and indicating that they would be “a national hero” if they did so.

Next, on January 3, President Trump called Secretary of State Raffensperger directly to ask that he “find” the 11,780 votes that would be necessary to surpass Joe Biden’s electoral lead.  The Washington Post subsequently published the recording and a transcript of the call in which “[President] Trump alternatively berated Raffensperger, tried to flatter him, begged him to act and threatened him with vague criminal consequences… at one point warning that Raffensperger was taking a ‘big risk.’”   President Trump also implored: “Fellas, I need 11,000 votes. Give me a break.”  Trump requested that Raffensperger’s General Counsel sit down with one of Trump’s attorneys to go over Trump’s allegations, and the General Counsel agreed.  President Trump also appeared critical of U.S. Attorney for the Northern District of Georgia Byung J. Pak, referring to “your never-Trumper U.S. attorney there.”

U.S. Attorney Pak resigned abruptly on January 4, 2021, the day after the call between Trump and Raffensperger was reported.  Recent reporting from the Wall Street Journal alleges that a senior Justice Department official, at the behest of the White House, had called Pak and pressured him to resign because “he wasn’t doing enough to investigate the president’s unproven claims of election fraud.”

The Applicable Legal Framework

The ever-growing list of contacts with Georgia by President Trump and those loyal to him has sparked a now-familiar debate: will President Trump face any criminal consequences for his actions?  There are at least three federal statutes and several state statutes which could be applicable to the reported conduct.

First, the Hatch Act – 5 U.S.C. §§ 7323 et seq. – prohibits government employees from using “official authority” to affect a federal election.  While the Hatch Act specifically exempts the President and Vice President from the civil provisions of the Act, the criminal provisions remain applicable to President Trump.  Specifically, 18 U.S.C. § 595 provides for up to one year imprisonment for anyone who “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, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.”

Second, 52 U.S.C. § 20511(2) prohibits any person from “knowingly and willfully” depriving, defrauding, or attempting to deprive or defraud the residents of a State of a fair and impartially conducted election process.”  According to the Department of Justice, this statute is notable because “[u]nlike other ballot fraud laws… the focus of this provision is not on any single type of fraud, but rather on the result of the false information: that is, whether the ballot generated through false information was defective and void under state law.”  Some commentators have noted, however, that prosecuting President Trump under this statute could be difficult, notwithstanding the recording and transcript of his January 3 call with Raffensperger, because it would require that the President knew he was urging Raffensperger to fraudulently change the vote.

Third, 18 U.S.C. § 241 makes it illegal to participate in a conspiracy against people exercising their civil rights.  As a conspiracy claim, this charge would require “two or more persons” to “conspire to injure, oppress, threaten, or intimidate” any person in the free exercise or enjoyment of their civil rights. Although more substantial evidence obviously would be needed to prosecute under this statute, federal prosecutors might begin an investigation because a conspiracy to dilute ballots lawfully submitted by Georgia voters might be inferred from the chronology of Senator Graham’s call to Raffensperger, Chief of Staff Meadows’ surprise visit to Cobb County, and the senior DOJ official’s call to U.S. Attorney Pak.

Finally, Georgia state law – GA Code § 21-2-604 – provides for three years-imprisonment when a person causes someone else to take part in election fraud by soliciting, requesting, or commanding another person to engage in such conduct.  Prosecutors might argue that President Trump solicited or attempted to coerce Raffensperger or other election officials to violate potentially several Georgia election statutes,[1] thereby violating § 21-2-604.  Fulton County District Attorney Fani Willis has already indicated that her office will investigate the issue.  There are also several general criminal statutes in Georgia, such as criminal attempt,[2] criminal solicitation,[3] conspiracy to commit a crime,[4] which could conceivably be in play if supported by evidence gathered in District Attorney Willis’ investigation.

Conclusion

Predicting potential criminal consequences for President Trump has become a favored pastime for many over the past four years.  The authors of this blog post do not wish to add to this now-time-honored tradition by speculating about the relative strength or likelihood of any such charges.  Suffice it to say that, at this point, Georgia may now have a lead over New York and Washington, D.C., in the presidential prosecution sweepstakes.

[1] For example, GA Code § 2-562 establishes that it is a felony to insert any fraudulent entry on or in, or to alter or intentionally destroy a ballot in connection with an election.  Similarly, GA Code § 2-499 requires the Georgia Secretary of State to file an official tabulation of votes and to submit an official certification of all votes cast to the Governor.

[2] GA Code § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”)

[3] GA Code § 16-4-7 (“A person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”)

[4] GA Code § 16-4-8 (“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.”)