During the rambling, hour-long call, Trump repeatedly cited debunked conspiracy theories about fanciful problems with the Georgia election, including ballots supposedly being shredded and alleged voting by dead people or people who live out of state. He claimed, again with no evidence, that he won the state by hundreds of thousands of votes. The Georgia officials patiently explained that he was wrong and that their investigations revealed no misconduct, but Trump wouldn’t hear of it.
On the call, the president sounds less like a criminal mastermind and more like your crazy, Newsmax-addled uncle who embraces all the conspiracy theories about the “stolen” election. Trump doesn’t explicitly ask the Georgia officials to discard Biden votes or create phony ballots for Trump. Instead, he fervently, and sometimes menacingly, tries to convince them that their certified election results are flawed. And in a strange way, the very craziness of the call works to Trump’s advantage when it comes to a potential criminal case.
The potential criminal charge would be election fraud. Federal law makes it a crime to knowingly and willfully attempt to deprive the residents of a state of a fair election by, among other things, procuring or counting ballots that are known to be fraudulent. A Georgia statute similarly prohibits soliciting another person to commit election fraud.
In any criminal prosecution, the key issue would be Trump’s intent. And the call itself clearly suggests one ready line of defense: an argument that Trump truly believes the Georgia results are wrong. He’s not encouraging them to falsify results, this defense would argue — he believes the results are already false. The request to “find” votes merely refers to locating legitimate Trump votes that were not counted because of “fraud” — or illegitimate Biden votes that were.
That such baseless claims might provide a defense is a maddening thought. But since the election, Trump has been surrounded by enablers feeding him conspiracy theories about how he actually won. His favored cable news and social media outlets have been repeating similar lies. Most Republicans, to their shame, have either echoed his wild claims or have chosen to “humor him” by remaining silent. And from what we know of Trump after the past four years, it seems clear his ego would not lightly accept the fact that he was legitimately defeated.
On the call, at least, Trump sounds like a true believer — frighteningly so. Maybe it’s all simply a very convincing act. But at a criminal trial, the claim that Trump really believed the Georgia election had massive problems could well be enough to raise a reasonable doubt about his intent. In other words, if Trump has imbibed so much of the right-wing Kool-Aid that he really believed what he was saying, then he lacked the intent to defraud. That doesn’t make him any less dangerous, but it may mean he didn’t commit a crime.
Federal election crimes generally require proof of willfulness, a heightened level of intent. It would not be enough to show that Trump asked the Georgia officials to do something improper; prosecutors would have to prove that he knew it was a crime. And here the presence of Trump’s attorneys on the call also would cut in his favor. Trump could argue that he relied on counsel to ensure he was not violating the law and to wave him off if he ventured too close to the line. But far from waving him off, Trump’s lawyers actively participated in the call and followed up on his demands.
The fact that this was a conference call with multiple parties also tends to undermine claims of criminality. Those trying to engage in election fraud are probably unlikely to do it in such an open forum. Of course, the president did attempt to extort Ukraine while several other people were on the call in the incident that led to his impeachment, so this argument only goes so far. And it’s theoretically possible that all those on the White House end of the call, including outside attorneys, were criminal co-conspirators — although that seems even less likely and exponentially more difficult to prove.
Many are quick to reach for criminal remedies whenever some new Trump outrage is revealed. But there is a great deal of misconduct, particularly in the world of politics, that is not a crime. The Biden Justice Department or Georgia state authorities may well investigate and may unearth additional evidence. But as things now stand, the call, like so much of Trump’s misconduct, appears likely to fall into the category of appalling but not criminal.