Did Trump break the law in leaked call with Georgia Secretary of State?
OPINION: The explosive hour-long recorded tapes confirm that the president learned nothing from his impeachment.
Just when we thought it was safe to feel like we could believe in America again, with the compassion, decency and optimism of the incoming Biden-Harris administration, outgoing President Donald J. Trump yet again showed the nation how corrupt, incompetent, authoritarian and dangerous he is.
Once again Trump has been caught on tape behaving badly. Many will recall when the president tried to shake down Ukraine President Volodymyr Zelensky on a call to investigate his eventual opponent, Joe Biden, in the 2020 presidential election. Trump described the nefarious request as a “favor” on behalf of the Ukraine leader to the United States.
The call led to his impeachment in the House of Representatives and regrettable acquittal in the U.S. Senate. Republican Senators blocked witnesses and refused to hold Trump accountable. Now, almost a year later, Trump went on a not-so-subtle attack of Georgia Secretary of State Brad Raffensperger during a telephone call (which was recorded by Raffensperger) and in what will go down in political history as one of the most infamous mob-boss-like shakedown lines ever.
“I just want to find 11,780 votes,” Trump said.
Trump’s latest action confirms that he learned absolutely nothing from his impeachment, contrary to the opinion of U.S. Sen. Susan Collins, who said he learned his lesson after his trial in the Senate.
Worse, after Raffensperger released the tapes to The Washington Post on Sunday, Trump made it clear that he is still the same Trump we all have come to know over the past three decades in saying he intended to sue the Georgia Secretary of State for illegally taping their call. This, of course, smacks of irony given the fact that Trump has likely violated several Georgia state laws dealing with election interference or threatening state election officials.
Not to mention, Raffensperger was within legal bounds in his recording of the president’s hour-long chat, as Georgia state law allows one-party consent to record other people’s audio conversations.
The big question on the table now as we head into Tuesday’s Georgia U.S. Senate run-off election, which now has become all the more consequential, is whether Trump’s actions are criminal, or if he can be impeached again by the House.
Here is my take in a nutshell.
Yes, Trump can certainly be impeached again, but there are only 16 days left in his presidency. So I doubt House Speaker Nancy Pelosi would go through the machinations to make it happen. The House could, however, vote on a very strong, bipartisan censure motion. I suspect she could find some Republicans who would join the Democrats in this effort to show their contempt for the actions of the president.
My sources on Capitol Hill as of Sunday evening when this story broke told me that Republican members of both the House and Senate are alarmed and feeling gut-punched by Trump’s obvious attempted intimidation of the Georgia Secretary of State.
Many Republicans admit privately that Biden won the election months ago. Some have said so publicly, but this all comes down now to either fealty to Trump or loyalty to your country. I think some Republicans may want to run for cover and redeem themselves if they can.
As to whether or not Trump can be criminally charged or not; this for me is at the core of why he continues to try and overturn an election he clearly lost. He fears criminal and civil penalties for his conduct that dates back well beyond 2015. He fears New York Attorney General Letitia James, a Black woman, who has filed dozens of lawsuits against Trump. He fears the IRS, looking into his alleged tax evasion, his alleged shady business deals, and on and on.
Trump is behaving just like what he is — much more desperado than mob boss.
First, the U.S. Constitution in Article 2, Section 2, establishes the president’s power to pardon crimes “except in cases of impeachment.” This means that Trump could not pardon an impeached president like Bill Clinton, or himself for that matter.
But the key provision is in Article 2, Section 4, which reads: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.“
This is the Founders’ express and only provision to deal with and remove a corrupt executive official or other civil officers. What the Founding Fathers did not address is if, for example, New York City could charge a sitting president for murder if he shot someone to death say on “5th avenue,” as Trump infamously joked. That is the open question.
This is what tripped up then-Special Counsel Robert Mueller when he outlined to Congress in 2019 his long-awaited Mueller Report that he believed Trump had committed possibly ten instances of obstruction of justice for which Trump could be charged, and that he did not believe they could charge him with the crime due to a 1973’s Nixon era memorandum (updated in 2000) issued by the Department of Justice’s office of legal counsel.
The memo in question is the subject of much debate by attorneys like myself, who don’t agree with the memo’s assertions that you cannot indict a sitting president. I believe that in our system the president is not above the law, nor is he below it. But he should be subject to it as are we the people.
As to Trump’s telephone call with Secretary Raffensberger being intimidation of an election official or coercion of an election official, here is what the federal law says starting with 52 USC § 20511(2)(B), which reads:
“A person, including an election official, who in any election for Federal office. . .attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process.“
Trump fits that definition pretty clearly. Next is 18 USC chapter 41 section 872 which reads:
“… whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
And finally, 18 USC Chapter 29, sec. 595, which is the code that governs federal elections and political activities, also prohibits a federal official or employee (in this case the president) from interfering with the duties of a state official or administrative official in doing their duties in the election process.
These three federal laws are not the only source of trouble for Trump. Georgia has pretty express state election laws that forbid the type of activity the president engaged in on the call, with his Chief of Staff Mark Meadows and an attorney named Cleta Mitchell.
All three of them may have broken various laws, but here is the bottom line: President Donald Trump is a loathsome, dishonest, dishonorable man. He has disgraced his high office and his nation. The Republicans own this disaster of a man. They own the mess the country is about to witness on Jan. 6 as the radicalized Republicans of 2021 try to thwart the electoral college win of Joe Biden.
Republicans could have stopped Trump last year during impeachment and only one Republican senator, Mitt Romney, stood up for the Constitution. We must never forget these seditious elected officials. There must be political consequences for their undemocratic actions.
Sophia A. Nelson is a former National Republican Congressional Committee counsel and author of the book, “ePluribus One: Reclaiming Our Founders Vision for a United America.”
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