The lawmakers sent a congressional letter to the FBI in response to an audio recording that showed Trump threatening Georgia Secretary of State Brad Raffensperger (R) with criminal prosecution unless he could “find” 11,780 votes ― one more vote than President-elect Joe Biden’s margin of victory in the state.
“So look,” Trump said on the recording, first released to The Washington Post. “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.”
Later in the call, Trump reiterated his demand for Raffensperger to manufacture votes for him. “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
The letter alleges Trump violated two federal statutes and one Georgia statute forbidding the solicitation of election fraud when he pressed Raffensperger to alter the vote total in order to declare Trump the winner of the state’s 16 electoral votes.
“As Members of Congress and former prosecutors, we believe Donald Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes,” Lieu and Rice wrote. “We ask you to open an immediate criminal investigation into the President.”
“In America, no one is above the law ― not the president and not any former presidents,” Lieu told HuffPost.
The call for a criminal investigation is among the strong reactions lawmakers and watchdog groups have expressed about the phone call. But Democrats and outside groups differ on how to hold Trump accountable for his misdeeds.
Trump’s effort to pressure Raffensperger “merits nothing less than a criminal investigation,” Sen. Dick Durbin (D-Ill.) tweeted Sunday night.
“There’s no question there is grounds for an investigation at the federal level and at the state level,” said Stephen Spaulding, special counsel for public policy at the nonpartisan nonprofit Common Cause.
A potential problem for prosecuting Trump’s actions is that the person soliciting the crime must know that they are requesting election fraud to be committed. If Trump legitimately believes the falsehoods that he won Georgia by “hundreds of thousands” of votes, that thousands of dead people voted and that electronic voting machines invented votes for Biden, among other outlandish conspiracies, then it may not be possible to criminally prosecute him.
“As with so many things in this presidency and president, the question is whether Trump is drinking his own Kool-Aid,” election law expert Rick Hasen wrote on Slate Monday. “Reading the entire one-hour rambling call transcript, it is hard to know if Trump actually believes the fever swamp of debunked conspiracy theories about the election or whether he’s just using the false claims as a cover to get the political results he wants.”
If it is not possible to prove Trump knowingly committed a crime, then his offense becomes a political abuse of power that can be addressed by Congress.
In that vein, Rep. Hank Johnson (D-Ga.) promised to introduce a resolution in the House to censure Trump for the effort to steal the 2020 presidential election. Citizens for Responsibility and Ethics in Washington, or CREW, a liberal ethics watchdog group, went further, calling on the House to immediately impeach the president again.
“While the logistics of holding impeachment proceedings in the final two weeks of a presidency are admittedly hard to pull off, if this isn’t impeachable conduct, then literally nothing is,” Noah Bookbinder, CREW executive director, said in a statement.
The watchdog group is not solely focused on impeachment, as its lawyers are examining criminal statutes to determine whether to file a criminal complaint against the president.
Lieu said he believes Trump’s actions amount to “impeachable conduct,” but he questions whether a second impeachment is necessary after Trump lost the election.
“The purpose of impeachment is to remove the president and the American people already chose to do that in November,” Lieu said
The threatening phone call to Raffensperger in many ways mirrors the phone call Trump made to Ukraine President Volodymyr Zelensky in July 2019 that led to his impeachment. On the call with Zelensky, Trump pressured the foreign president to publicly announce a corruption investigation into Biden by threatening to withhold congressionally approved military aid from the country.
“I would like you to do us a favor though,” Trump told Zelensky after mentioning the military aid that Trump had illegally halted.
During the House impeachment hearings, Stanford Law School professor Pamela Karlan explained that Trump’s abuse of office as it related to Ukraine simply foreshadowed the threat he posed to domestic affairs by seeking to extract concessions from state-level officials with threats of withholding federal money.
“Imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding,” Karlan said. “What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, ‘I would like you to do us a favor? I’ll meet with you, and send the disaster relief, once you brand my opponent a criminal.’”
Trump did threaten to withhold coronavirus aid from states with governors who spoke negatively about him. And now, Trump is threatening to brand and prosecute Raffenperger as a criminal in order to get the secretary of state to help him to steal the election.
One reason to pursue a criminal investigation, regardless of whether Trump believes his own lies, is because the scope of the president’s effort to steal the election is not yet known.
“The question is we’ve got this one tape, but how many other people received this call?” Spaulding said. “How many state legislatures received this call? What other secretaries of states, election officials received this call? Who else in the White House was involved?”
“I find it hard to believe that Donald Trump called just one secretary of state,” Lieu said, adding that the FBI should investigate any other calls they uncover.
An investigation could be led by Congress, the FBI, a special counsel appointed by the attorney general, or state-level prosecutors in Georgia.
It would not be extraordinary for the incoming Biden administration to open an investigation into criminal wrongdoing by the outgoing administration.
President George W. Bush’s attorney general, John Ashcroft, appointed James Comey as special counsel in 2001 to investigate President Bill Clinton’s last-minute pardon of tax-dodging investor Marc Rich after Rich’s wife made political and charitable donations that benefited Clinton. Attorney General Eric Holder, serving under President Barack Obama, appointed special counsel John Durham to investigate the torture program run by the CIA under the Bush administration.
“[The Biden administration] should let law enforcement do its job and pursue investigation,” Lieu said. “Once they get the facts they should let prosecutors decide what they want to do with it.”