The Brookings report makes a strong case. “We conclude that Trump’s post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes,” the authors find. “These charges potentially include criminal solicitation to commit election fraud; intentional interference with performance of election duties; conspiracy to commit election fraud; criminal solicitation; and state RICO violations.”
In addition to other state crimes identified by the authors (such as criminal solicitation outside the election code), there may even be basis for extortion charges arising from Trump’s menacing suggestion that Raffensperger and his general counsel, Ryan Germany, could be prosecuted for not finding votes. “That’s a criminal offense,” Trump told Raffensperger. “And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.” Given that Trump headed the executive branch and routinely urged the Justice Department to do his bidding, a reasonable person in Raffensperger’s shoes might have considered that a threat.
The most common objections to prosecution are that Trump is either immune (a weak argument, as he was acting as a candidate not performing presidential duties), or that he actually believed he won. As to the latter, there is zero evidence of fraud that would have warranted flipping Georgia.
Moreover, from the facts we have, we know Trump knew this. His calls to other Georgia officials in December to depart from established procedures or not to oppose his lawsuits — and Trump’s instruction to the Justice Department to declare the election invalid and “leave the rest to me” — are powerful evidence he was determined to hold power despite the election results. The six-step guide by John C. Eastman, a senior fellow at the Claremont Institute and a former law professor, for Vice President Mike Pence to overthrow the election (without any basis) appeared aimed directly at a client who wanted justification for a coup.
And if that weren’t enough to prove that Trump’s allegations of election fraud were intentionally false, the New York Times reports that, by the time Trump surrogates held a bizarre news conference on Nov. 19, spinning a conspiracy theory about the election, “Mr. Trump’s campaign had already prepared an internal memo on many of the outlandish claims about the company, Dominion Voting Systems, and the separate software company, Smartmatic. The memo had determined that those allegations were untrue.”
There are powerful reasons for Georgia to prosecute someone for trying to fraudulently flip an election. The state has passed a statute allowing the Republican legislature, through the state board of elections, to displace voting officials in Fulton County (the most populous county, with the largest African American electorate) in the administration of elections. This is widely believed to be a prelude to future efforts to reverse election results. Unless politicians understand such actions are illegal and will be prosecuted, the temptation to do so will be overwhelming in 2022 and 2024.
Certainly, if Georgia does not pursue criminal actions against Trump, the Justice Department must consider whether federal crimes were committed. Moreover, even if Georgia were to proceed to prosecute the specific Georgia-related actions, the feds must consider the entire pattern of Trump’s actions — over many weeks and in multiple states — to overturn the election. In instructing the Justice Department to undo the election, in pressuring state officials and, finally, in instigating the Jan. 6 assault on the Capitol, Trump may have committed the ultimate federal crime: sedition. The events of Jan. 6 were one part of the overall scheme; the Georgia arm-twisting was another.
The necessity to deter future presidential candidates from running phony “audits” — as was tried in Arizona and is now underway in Texas (a state Trump won!) — is plain. Republicans are engaged in a vigorous effort to acclimatize their base to the idea that election results are neither final nor inviolate, but merely a prelude to further efforts to overturn election results — by force, if need be. The concern for future coups rises with each new revelation (e.g., the Eastman memo) and the ongoing pursuit of scam “audits.”
Certainly, prosecution is not the only means of deterring presidential coups. Denying Republicans a House majority is another. And reform of the Electoral Count Act to prevent frivolous efforts to send alternate slates of electors or to throw out valid ones (as Eastman contemplated) must be part of any voting reform legislation. Furthermore, lawyers such as Eastman who promote coups should lose their law licenses, a powerful disincentive to enabling seditious clients.
The Justice Department must follow the plot to overturn the election to the Oval Office, lest we leave democracy vulnerable to the next set of seditionists. After all, it was then-Senate Majority Leader Mitch McConnell (R-Ky.) who warned after Trump’s second impeachment acquittal that the former president was “still liable for everything he did while he was in office. . . . He didn’t get away with anything yet.” But he will get away unless state and federal prosecutors uphold their oaths to defend democracy.