Futility Cannot Excuse Malice

I’m going to start with an analogy I made in yesterday’s Advisory Opinions podcast. Let’s imagine you’re standing in line at a bank, and a man strides in and yells, “This is a stick-up!” You’re stunned. You’re afraid. And then, suddenly, rather than pulling out a gun, the wannabe robber pulls out a stuffed rabbit and starts pointing it at everyone in the lobby.

As everyone gathers their wits, the security guard walks over, grabs the robber by the arm (even as he brandishes the rabbit and says, “Pew! Pew!”), and calls the police. What do you do with the guy? He obviously intended to rob the bank. You might even say he tried to rob the bank. But the man had a rabbit. No one was ever in real danger.

At the end of the day, a prosecutor may not choose to throw the book at the defendant, but he’ll do something.  Why? Because futility cannot excuse malice, and the defendant’s criminal conduct still merits punishment.

That’s exactly the feeling I had when I listened to Donald Trump’s telephone call to Georgia Secretary of State Brad Raffensperger and read the transcript. Trump wasn’t trying to rob a bank vault, but he was trying to steal an election. He didn’t possess the legal or political weapons to accomplish his intent—not even close. But futility cannot excuse malice, and Trump’s effort may have violated both state and federal criminal law.

The transcript is a fascinating, frustrating read. At first it seems as if Trump is merely pleading his case, throwing wild allegation after wild allegation at Raffensperger in the vain hope that something sticks, that Raffensperger will somehow believe that one of the most closely-scrutinized state elections in modern American history was fatally flawed.

While it’s demeaning and disturbing for the president to make his arguments—especially since he has absolutely no good-faith basis for believing that his fraud allegations are true—there’s nothing criminal about a president pleading his case. But that’s not all he did. In the transcript, he demanded that Raffensperger “find” sufficient votes to overturn the Georgia election, and he also issued a rather transparent threat of criminal prosecution if Raffensperger did not comply.

Keep in mind, of course, that Trump is the chief law enforcement officer of the United States.

Let’s walk through Trump’s words. As Judd Legum points out in his own analysis of Trump’s actions, when Cleta Mitchell, a conservative lawyer on the call who pressed Trump’s position, pushed for Georgia to share more data with the Trump team, Trump responded:

No, we do have a way, but I don’t want to get into it. Have we found a way in other states later — Excuse me, but we don’t need it, because we’re only down 11,000 votes, and we don’t even need it. I personally think they’re corrupt as hell, but we don’t need that. All we have to do is find 11,000-plus votes. 

Ok, so maybe Trump is convinced that there’s so much fraud that it would be easy to identify 11 thousand votes. The comment is disturbing, but it’s not pushing me into the belief that Trump is demanding that Raffensperger steal the election for him.

Yet Trump also says this:

You would be respected if—really respected if this thing could be straightened out before the election. You have a big election coming up on Tuesday. And therefore, I think that it really is important that you meet tomorrow and work out on these numbers. Because I know, Brad, that if, if you think we’re right, I think you’re going to say, and I’m not looking to blame anybody, I’m not blaming, I’m just saying that, you know, you don’t want under new counts and under new views of the election results, we won the election. You know, it’s very simple, we won the election.

Let’s keep giving Trump the benefit of the doubt. Since Raffensperger is a Georgia state official and not a Trump subordinate, Trump can’t order Raffensperger to change the outcome. He’s still just asking.

But things get darker still. More than once, Trump suggests that Raffensperger is risking criminal prosecution if he doesn’t hand the election to Trump, and the risk is greater for Raffensperger than it is for the people who Trump claims actually tampered with ballots:

And you’re going to find that they are—which is totally illegal, it is more illegal for you than it is for them, because you know what they did, and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk … You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.

Elsewhere, Trump says, “Well, under law, you’re not allowed to give faulty election results. OK? You’re not allowed to do that, and that’s what you’ve done.”

Let’s be clear about what these words mean. The chief law enforcement officer of the United States is raising the possibility of prosecuting the Georgia secretary of state unless the secretary of state changes the outcome of the vote without any factual or legal foundation for making the change. 

Now, on to the relevant federal and state criminal statutes. First, 18 U.S.C Section 241 makes it unlawful for two or more persons to “conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”

As the December 2017 (Trump era) Department of Justice publication “Federal Prosecution of Election Offenses” makes clear, the Supreme Court has held for more than a century that the right to vote for federal offices is protected by Section 241. In fact, there have been a broad array of election-related prosecutions under the statute, including failing to count votes or altering votes counted.

Moreover, if Trump engaged in a conspiracy, he doesn’t actually have to flip Georgia’s votes to violate the law. Here’s the DOJ manual (with copious citations included):

Section 241 does not require that the conspiracy be successful, United States v. Bradberry, 517 F.2d 498, 499 n.6 (7th Cir. 1975), nor need there be proof of an overt act. United States v. Colvin, 353 F.3d 569, 576 (7th Cir. 2003); United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000). But see United States v. Brown, 49 36 F.3d 1162, 1165 (6th Cir. 1995) (stating in dicta that Section 241 requires an overt act). Section 241 reaches conduct affecting the integrity of the federal election process as a whole, and does not require fraudulent action with respect to any particular voter. United States v. Nathan, 238 F.2d 401, 407 (7th Cir. 1956).

Note, however, the law is applicable only when “two or more” individuals conspire. In other words, Trump can’t violate the statute on his own. Prosecutors would need to introduce evidence that he worked with others to attempt to unlawfully alter Georgia’s results.

A number of commentators have also pointed to 52 U.S.C. Section 20511(2) as potentially applicable, and on its face it may well apply. The law makes it a crime to “knowingly and willfully deprive, defraud, or attempt to deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.”

There is much less case law interpreting this section of the U.S. Code than there is for Section 241, but Trump’s best defense is plain from the language of the statute. As the DOJ manual indicates, “federal prosecutors must be prepared to prove that the offender was aware that he or she was doing something unlawful.”

Could prosecutors prove that Trump knew his demands were illegal? Trump would argue that he was trying to protect election integrity when he demanded that the secretary of state act in response to his vote fraud conspiracies. Trump’s conspiracies might be wild, but if he genuinely believes them, can he possess the requisite intent?

There is also the matter of Georgia state criminal law, and it also contains statutes that seem to implicate the president’s conduct. Georgia Code Section 21-2-603 makes it a crime to conspire to violate Georgia election laws, and the crime “shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of this chapter is consummated.” (Emphasis added.)

In addition, it’s unlawful in Georgia to even solicit election fraud:

A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.

I cite these statutes not as a comprehensive legal analysis or as definitive declaration of criminal misconduct, but instead to note that Trump’s conduct raises multiple obvious criminal red flags. It is easy to make the case that Trump should face a searching criminal inquiry.  

But let’s get back to the stuffed rabbit problem. It’s hard to read the transcript or listen to the call and not come away with a singular sense that Trump’s effort was pathetic. He was waving Peter Rabbit in the bank lobby. It’s an insult to incompetence to label his effort incompetent. It was clear that the world’s most powerful man was completely outmatched by the Georgia secretary of state. We were hearing the empty ravings of a defeated man.  

So what do we do? What should we do? As our own Haley Byrd Wilt reports in her excellent new Uphill newsletter (subscribe!), there’s no real momentum for the political remedy of impeachment, even though impeachment would be appropriate. We’re barely more than two weeks away from Joe Biden’s inauguration.

But should the DOJ and/or Georgia law enforcement open a criminal inquiry? The Fulton County DA, Frani Willis, issued a statement that at least raised the possibility of prosecution.  “As district attorney, I will enforce the law without fear or favor,” Willis said, “anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable.”

My own conclusion is simple: We should treat the president as we would any other citizen. If the DOJ or the district attorney would investigate another American, including another elected official, under these facts, then investigate. If the investigation would lead to the prosecution of another American, then prosecute. A president is not above the law, and we remain a nation of laws. The futility of the president’s actions is no excuse for their malice, and it does not absolve him of any potential criminal intent.

One more thing …

Since Republicans by the dozen are planning to object to the counting of the electors tomorrow, I’ve had a number of readers ask me if I’m altering my opposition to “burning down” the GOP. I maintain my position that each candidate should be judged on their own merits. We should not simply vote based on the “R” or “D” by their names.

Increasingly, however, that’s a distinction without a difference. I don’t believe that any member of Congress who objects to the electoral count on January 6 deserves to hold any position of public trust. They’re attacking the constitutional foundations of the American republic. If they succeeded (they won’t, but remember that futility does not excuse malice), their coup would threaten the peace and unity of the nation. They should be primaried, and if they win their primaries, they should be defeated in the general election.

Given the sheer number of Republican members of the House and Senate who are likely to object, effectively applying this individualized standard would demolish the power of the GOP, at least for a time. So be it.

It’s a sad fact, however, that many of these politicians inhabit the safest red seats in America. Accountability will be difficult. It should still be tried.

One last thing …

Notre Dame football fans, this one’s for you. Everyone knows that Texas A&M belonged in the Final Four:

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