Trump is going back to Georgia. Did he break the law
there?
The former president’s claims of fraud could leave him open to criminal charges
By
and
Today at 4:27 p.m. EDT
On Saturday, former president Donald Trump will go to Georgia, ostensibly to rally supporters. But this visit also marks Trump’s return to a state where he is under investigation for possible crimes against nearly 5 million Georgia voters — namely, his efforts to subvert and overturn the results of the 2020 presidential election in the state.
Our extensive new Brookings Institution report probes these efforts in depth, and analyzes publicly available evidence in connection with the reported ongoing investigation by the Fulton County district attorney, Fani Willis.
Whether Trump will in fact be charged must await Willis’s decision, based on all the evidence and consideration of the presumption of innocence to which all Americans are entitled. But there is no doubt that attempting to subvert democracy — to effectively disenfranchise millions of Georgians, and particularly Georgians of color — is not just wrong; it is potentially criminal.
Trump’s call is still a crime, even if he believes his own fraud fantasies
The centerpiece of Trump’s Georgia interference is his now infamous phone call to Secretary of State Brad Raffensperger, during which Trump repeatedly insisted that he had won Georgia “by hundreds of thousands of votes” and demanded that Raffensperger “find 11,780 votes” — exactly one more vote than the margin of Joe Biden’s 11,779-vote victory in the state. But Trump’s actions went far beyond his solicitations and threats on this one call. He also personally contacted other officials in Georgia — including the governor, the attorney general and the secretary of state’s chief investigator — to urge them to alter the election outcome.
Our report analyzes and explains the Georgia criminal statutes that may bear on this course of conduct. That includes laws aimed specifically and narrowly at actions taken for the purpose of disrupting the fair conduct of elections. In Georgia, it is a crime to solicit someone to commit election fraud, to intentionally interfere with performance of official election duties or to agree with others — that is, to conspire — to commit election fraud. Georgia law also contains more general criminal prohibitions that may apply here, including statutes that prohibit making false statements and improperly influencing government officials.
The report separately discusses the possibility that Trump could be charged under Georgia’s Racketeer Influenced Corrupt Organizations (RICO) Act statute. The term “RICO” may conjure up images of Mafia bosses, but the statute is much broader. If Trump committed a so-called pattern of predicate criminal acts — which may include many of the acts potentially chargeable in the statutes mentioned above — a RICO charge may be available if he did so either through an enterprise (like his campaign) or to gain control of an enterprise (like the presidency).
For all these possible charges, the same core fact pattern comes into play: Trump is reported to have repeatedly used misinformation and intimidating statements to seek to induce, solicit or threaten state officials to alter the legitimate outcome of the presidential election in Georgia, including after the election results were certified by Republican elected officials. And for all these possible charges, Trump is not insulated because his efforts failed: It can be criminal to attempt these crimes.
Trump may be in real trouble from new civil and criminal cases
Of course, the prospect of a state prosecutor filing charges against a former president for election crimes should not be considered lightly, but certain key facts weigh in favor of giving criminal charges the most serious consideration.
First, Trump is alleged to have attacked Georgia’s democracy, which belongs to all Georgians, and to have attempted to deny the will of the majority in voting for president, thus effectively attempting to disenfranchise millions of voters.
Second, in our federal system, it is the states and not the federal government that have principal responsibility for carrying out and policing the proper administration of presidential elections. That rule exists, in part, to prevent federal officials from manipulating the outcome of elections from the top. So the Constitution demands that Georgia stand up for itself against the encroachment of a manipulative president who sought to entrench himself in power.
Third, Trump’s likely defenses against criminal charges lack merit. Trump would no doubt claim immunity based on his status as president when he attacked the Georgia election outcome. But categorical immunity from prosecution is limited at most to sitting presidents, not former presidents — as Trump himself has conceded. Because he is no longer in the White House, he is out of luck. It’s true that there is additional, more targeted immunity for a former president for actions undertaken within the outer perimeter of his official duties. But that claim would fail because the Constitution and federal law assign no role to the president over counting or tabulating votes in Georgia, or certifying the election results. It would be a perversion of the president’s oath to “take care” that laws are faithfully executed to embrace an effort to subvert lawful election results.
You don’t have a ‘right’ to a lawyer when you’re trying to steal an election
Likewise, the publicly available evidence, at least as it exists today, negates any claim by Trump that he sincerely believed he was acting pursuant to the law. There is a stark absence of any evidence suggestive of irregularity in the Georgia election process. The fact that the existing outcome was arrived at and consistently reaffirmed in a process overseen by Republican officeholders is a powerful refutation of any such argument Trump might offer.
Nor could he credibly claim that he was merely venting or asking officials to do the right thing as he perceived it. That makes no sense on the public record, and a jury would likely reject it. For example, his demand to find 11,780 votes, specifically, was not based on evidence, but on his vote deficit. And in any event, even if Trump sincerely but mistakenly believed he had won the election, that does not allow him to commit crimes and violate Georgia law in pursuit of another term in the White House.
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Our assessments are, of course, based only on the publicly available evidence. We are mindful that we do not possess all the facts and that the investigation is pending. Our conclusions could change as the facts develop. Indeed, some material facts may emerge in the coming days.
But the
risks of inaction are clear. Trump has still not gotten over the 2020 election
results, and he is still trying to overturn them. Last week, he sent a letter to the Georgia secretary of
state again reiterating baseless voter fraud allegations and the secretary to
consider decertifying the 2020 election result — now close to a year after the
election. By this conduct, Trump is proving that he would do the same things
again if given the chance. Investigating and, if justified, prosecuting past
crimes may be the best bulwark against future ones.