The Washington PostDemocracy Dies in Darkness

Trump’s call is still a crime, even if he believes his own fraud fantasies

Intent matters, but you can’t avoid liability by deciding you live in an alternate reality

President Trump addresses a Senate campaign rally in Dalton, Ga., on Jan. 4. (Leah Millis/Reuters)
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President Trump’s call demanding Georgia officials “find 11,780 votes” and reverse the election results in the state was his most brazen abuse of power yet. If Georgia Secretary of State Brad Raffensperger didn’t go along with Trump’s scheme and “recalculate” the vote, the president warned, “it’s going to be very costly in many ways,” threatening that Georgia authorities were committing a “criminal offense” by not endorsing Trump’s false voter fraud claims. The president’s conduct violates the letter and spirit of federal and Georgia criminal laws prohibiting attempts to procure false election results and to solicit election fraud.

Since then, some experts have raised questions about whether Trump’s attempted bullying can be prosecuted because of a possible lack of “intent.” The thought is: If the president truly believes the false allegations he is spreading, then his request that Raffensperger “find 11,780 votes” isn’t an effort to corrupt the election, but rather to “correct” it.

That defense may not work for Trump in this case.

Although a criminal conviction does require proof of intent — proof Trump knew he was asking for nonexistent votes to be counted in his favor — a person cannot avoid criminal liability by simply deciding to believe fantasy over fact. For example, if a person becomes convinced that she owns her neighbor’s car and is shown the title certificate proving otherwise, she cannot steal the car and escape conviction by feigning she truly believed fiction over fact — at least, not without mounting an insanity defense.

Americans knew Trump would lie about fraud. Now it won’t work.

The proof required for a conviction here would be that Trump was made aware of the facts — that his voter fraud allegations in Georgia (and elsewhere) are false, and he nevertheless sought the announcement of false election results in his favor. Georgia has gone through two full recounts, including a hand recount verifying machine ballots, plus an in-depth review of signature matching demanded by Republican officials. After all of this, Biden’s victory in Georgia was certified by the Republican governor elected with Trump’s help. Repeatedly on the call, the Republican secretary of state and his legal counsel systematically knocked down one conspiracy theory after the next, explaining the Georgia state police and other government investigators and multiple court proceedings had found them meritless. Yet despite being told these facts, the president then repeated, “So what are we going to do here, folks? I only need 11,000 votes … give me a break.”

Trump can’t escape criminal culpability now simply with a “head in the sand” defense. He can’t dodge an investigation by Georgia prosecutors or by the Justice Department by feigning ignorance. It is a criminal violation of federal law to attempt to deprive voters of a fair and impartial election by procuring fictitious ballots. It is a criminal violation of Georgia law to solicit another person to engage in election fraud. The president’s demands in the hour-long call on Saturday seem to fit squarely within the conduct described by these laws.

Listen to the full Jan. 2 phone call. This audio has been edited to remove the name of an individual about whom the president makes unsubstantiated allegations. (Video: Obtained by The Washington Post)

Whether criminal charges are ultimately brought against him for it will be within the discretion of federal and state prosecutors. Regardless, the ramifications of this call are far greater than whether the president is brought to justice for his attempted crimes against democracy. In America, our leaders exercise the power to govern through the consent of the governed. As retired Sen. Bob Corker (R-Tenn.) put it, “the American people, not politicians” have the right to elect our president. No one person is above this principle.

Trump’s call Saturday is an extension of a long-standing campaign of calculated misinformation since Election Day that has done considerable damage to our democracy. It has enriched the president’s new political committee by hundreds of millions of dollars while impoverishing our democracy. The true test of whether this damage will last is whether people hear the recording and see Trump’s rhetoric for what it is: a self-serving attempt to ignore the will of the people and hold onto power.

Trump tells his donors they’re paying for recounts. They aren’t.

In the past, America was viewed as a beacon of democracy, not a country that polluted its own free and fair elections with reckless toxicity. If we want to maintain credibility in American efforts to promote democracy abroad, our leaders must reject the poisoning of democracy at home.