Jurisprudence

It Sure Looks Like Trump Will Face Criminal Charges for Election Fraud

Donald Trump raises his fist to an audience off-screen as he stands on the stairs to Marine One. A masked Marine stands next to the helicopter, saluting.
Donald Trump leaves the White House on Jan. 20. Eric Thayer/Getty Images

Fulton County District Attorney Fani Willis has opened a criminal investigation into Donald Trump’s attempt to interfere with Georgia’s election, the New York Times reported on Wednesday. While the former president faces potential criminal liability in several states, including New York, now that he has left office, the Georgia probe may pose the most immediate threat. All available evidence suggests that prosecutors are considering charges that amount to election fraud—a felony offense under Georgia law, and the very crime that Trump claimed he sought to stop.

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The New York Times reported that Willis, a newly elected Democrat, has formally requested that multiple state officials preserve documents related to “an investigation into attempts to influence the administration of the 2020 Georgia General Election.” Willis’ investigation appears to focus on an hourlong phone call between Trump and Georgia Secretary of State Brad Raffensperger, a Republican, on Jan. 2. During this conversation, which Raffensperger later released to the public, Trump repeatedly pressured the secretary of state to overturn the election results. “I just want to find 11,780 votes,” he told Raffensperger—one more than the 11,779 votes by which he lost the state. The former president repeatedly urged Raffensperger to throw out existing votes for Biden and “find” new votes for Trump. He also implied that he might withhold support for Republican candidates in Georgia’s Jan. 5 Senate runoff if Raffensperger could not get “this thing … straightened out.”

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“You know, under new counts, and under new views, of the election results, we won the election,” Trump said. He instructed Raffensperger to “work out on these numbers” to reverse Biden’s victory—and warned that the secretary of state might face criminal charges unless he complied with this order.

As election law expert Rick Hasen noted at the time, there is no question that Trump was asking Raffensperger to manufacture enough votes to overturn the Georgia election on the basis of paranoid delusions. The former president’s call was thus not only corrupt, but very likely criminal. Under Georgia law, it is illegal to falsify any records used in connection with an election, or to place any false entries in such records. And any person who “solicits, requests, commands, importunes, or otherwise attempts to cause the other person” to falsify voting records is guilty of “criminal solicitation to commit election fraud in the first degree.” The crime is a felony offense, punishable by up to three years in prison (and no less than one year). An individual is culpable even if they failed to induce fraud.

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It’s easy to see how Trump’s conduct falls squarely within these prohibitions. The former president commanded Raffensperger to alter election records—on the basis of absurd lies—to hand him Georgia’s electoral votes. He thus asked the secretary of state to commit election fraud. This solicitation is, itself, a felony. Trump would likely argue that he lacks the requisite intent because he did not want Raffensperger to falsify the records, just to correct them. (Or, in his own words, get them “straightened out.”) This defense would hinge on the claim that Trump truly believed there were 11,780 legitimate votes for him waiting to be found. But that is a question for the jury, not a reason for prosecutors to decline charges.

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Willis noted in the retention request that the investigation includes potential violations of Georgia laws “prohibiting the solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration.” This lengthy list of possible offenses indicates that the district attorney is focusing on the most obvious charge, solicitation of election fraud, but also looking at a broad range of criminal laws in building her case against Trump. In her letter to state officials, Willis described the Trump investigation as a “high priority” and said the case will go before a grand jury as early as March, with subpoenas to follow shortly thereafter.

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Willis has authority to probe the Jan. 2 phone call because Raffensperger’s office is located in Fulton County. Georgia Attorney General Chris Carr, a Republican, also has the power to charge Trump for his interference in the election. Raffensperger set that process in motion when his office launched an investigation into the call. The secretary of state’s office will present its findings to the Georgia State Election Board, which then has the option of reporting possible fraud to the state attorney general for further investigation. It will probably take a significant amount of time for the board, which is controlled by Republicans, to reach a decision—and even if it refers the case to Carr, there is no guarantee he will prosecute Trump. The attorney general has positioned himself as a staunch ally of the former president and vigorously opposed his recent impeachment. (The article of impeachment explicitly cites Trump’s call to Raffensperger.)

In light of Carr’s evident loyalty to Trump, Willis’ investigation may be Georgia’s best shot at bringing Trump to justice. Now that he is a private citizen, Trump may no longer claim immunity from indictment. Trump spent the months after Nov. 3 falsely accusing Democrats of stealing millions of votes. His lies led to a violent insurrection and his own impeachment. All the while, Trump said he simply wanted courts to closely scrutinize alleged fraud in the election. He may soon get his wish.

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