Prediction: No law-enforcement agency will open a serious criminal investigation into the Donald Trump-Brad Raffensperger call. That’s not to say that circumstances don’t justify a reasonable suspicion of shenanigans, but so far this is a political offense rather than a crime. House Democrats Ted Lieu and Kathleen Rice want to get as much political mileage out of this monstrously stupid gift as possible, and who could blame them?
Two House Democrats are calling on the FBI to open a criminal investigation into President Trump’s explosive call with Georgia Secretary of State Brad Raffensperger for possible violations of federal and state election laws.
Congressman Ted Lieu of California and Congresswoman Kathleen Rice of New York made their request in a letter to FBI Director Chris Wray on Monday after audio of Mr. Trump’s hour-long call with Raffensperger was obtained and published by several news outlets Sunday, including CBS News. In the call, the president pressured the secretary of state to “find 11,780 votes” to reverse his loss in Georgia’s presidential election.
“The evidence of election fraud by Mr. Trump is now in broad daylight,” the two Democrats wrote. “The prima facie elements of the above crimes have been met.”
Lieu and Rice, both former prosecutors, believe the president “engaged in solicitation of, or conspiracy to commit, a number of election crimes.” The pair cited two federal laws they believe Mr. Trump violated, as well as one Georgia state law regarding solicitation of election fraud.
Just on technical grounds, this would be a tough case to make. Fraud usually requires some demonstration of a criminal mens rea, an explicit intention to commit a fraud. Whatever else anyone can say about Trump, he really appears to believe that he won Georgia and that Raffensperger can legally find the votes. That makes his demands on Raffensperger nutty but not necessarily criminal.
What about the implied threat to sic the Department of Justice on Raffensperger? To justify an indictment, that threat would likely need to be more explicit, and again, the FBI would have to establish that Trump was knowingly pursuing corrupt ends. If he actually believed that Raffensperger was committing some sort of crime, that makes it more difficult.
That’s true not just at the DoJ but also in Fulton County, where Raffensperger suggested an investigation could take place:
Because Trump personally spoke with Raffensperger on Saturday and recently had a conversation with the chief investigator in the secretary of state’s office, Raffensperger told ABC’s “Good Morning America” in an interview that “there may be a conflict of interest” that would inhibit any potential investigation.
But Raffensperger went on to say: “I understand that the Fulton County District Attorney wants to look at it. Maybe that’s the appropriate venue for it to go.”
A spokesperson for the office of Fulton County, Ga., District Attorney Fani Willis did not immediately return an email or a phone call seeking comment on Raffensperger’s remarks.
Maybe a case can be made for that, but would it even fall within their jurisdiction? The interstate nature of the call and Trump’s location in DC would make it easy to force a change of venue to the federal courts, and we’re back at the same problems again.
Of course, it’s a lot easier to allege that Trump abused his office in making those threats and the call. The call itself seems to present a prima facie case for abuse of power, but that’s not a statutory crime for the FBI to investigate. That is a potential constitutional violation for Congress to investigate. Lieu and Rice could offer articles of impeachment and demand a House investigation into the call, which seems more egregious than Trump’s call to Ukraine’s Volodymyr Zelensky. But what’s the point of that when Trump won’t be in office for a removal anyway? Another impeachment of Trump is certainly possible after January 20, but that would be gilding the lily — and the incoming Biden administration would like to focus immediately on their own agenda.
The rest of the House Democratic caucus seems to have figured out that math, and instead are pursuing a censure of Trump:
Many conservative House Republicans defended President Donald Trump in the aftermath of his phone call demanding Georgia Secretary of State Brad Raffensperger “find” the votes needed for him to win the elections in his state — as Democrats began drafting a resolution seeking to censure Trump over the matter. …
Rep. Hank Johnson, a Georgia Democrat who sits on the House Judiciary Committee, circulated a letter Monday to collect support for a resolution he plans to introduce to censure and condemn Trump for seeking to overturn the election results in Georgia, Democratic sources told CNN on Monday. It remains to be seen whether the chamber would vote on the resolution, which would amount to a symbolic rebuke of the President.
Censures of House members are mainly symbolic, but at least the member has to stand in the well silently while the censure gets read aloud into the record. Censures of presidents are entirely meaningless except as a record of Congress’ unhappiness with the executive. It’s still a more appropriate rebuke of Trump than a criminal probe that will go nowhere and have law-enforcement agencies worried about politicizing their offices even further. They will, with great justification, wonder why Congress doesn’t just take care of its own responsibilities.
If they censure Trump over this, perhaps it should just be for sheer political stupidity. The cynical lesson from Watergate was “burn the tapes!” The cynical lesson for today is to just assume everything’s being taped, and act accordingly. Republicans like David Perdue are slamming Raffensperger for taping the conversation, but in this situation, he would have been an idiot not to get a record of the call. The call itself was improper under the circumstances, and Trump’s record of mischaracterizing such exchanges is extensive enough to have everyone well-advised to tape his calls just in case. Trump should have seen this trap coming a mile away and avoided it by having a flunky reach out to Raffensperger instead of getting on the phone himself. It’s amazing that Trump hasn’t learned anything about these vulnerabilities even after four years in office.