Wednesday’s riot at the US Capitol by supporters of outgoing President Donald J. Trump was dangerous, unprecedented, and anti-American, but it was also the ineluctable result of a months-long campaign by Trump to steal the 2020 presidential election. To the extent that it was not already apparent, Trump’s interest in staying in office is sincere, and the lengths to which he is prepared to go, are frightening. In the wake of the chaos in D.C., it now seems almost quaint to be thinking about what legal options might be available to rein in this maniac, but the American republic is, in John Adams’s words, “a government of laws, not men.” The law remains the best and most legitimate way to handle Trump, by any legal means necessary.
Trump should be removed from office as quickly as possible—whether by impeachment or through the process set out in the Twenty-Fifth Amendment to the Constitution. But even if he stays in office until Biden’s inauguration, the next administration must be prepared to use every lawful tool available to address his egregious conduct—including, if appropriate, prosecuting and imprisoning him for his conduct in recent days.
The criminal law is not well-suited to addressing even wildly reckless public comments by politicians—our constitutional system principally relies on political checks—but that is no reason Trump should get off scot-free. On Sunday, The Washington Post released the audio of a recording between Trump and Georgia Secretary of State Brad Raffensperger that quickly joined the annals of outrage-inducing recordings of Trump’s own words. In this one, Trump cajoles Raffensperger to find a way to swing the vote total in Georgia in Trump’s favor—at one point unambiguously stating, “I just want to find 11,780 votes, which is one more than we have. Because we won the state”—by endorsing some combination of false and unsubstantiated claims of election fraud. The call quickly generated renewed anger about Trump’s efforts to steal the election—which culminated in Wednesday’s storming of Congress—and more questions about whether Trump should be investigated and potentially prosecuted after he leaves office, in this case for criminal election fraud.
Wednesday’s events and Trump’s call highlight a major and obvious flaw in the argument from commentators who have claimed that a federal investigation, and perhaps prosecution, of the president would be too politically divisive to pursue: that position assumes that we know everything that there is to know about Trump and his misdeeds—even though this administration has systematically stifled internal dissent and criticism by using dubious nondisclosure agreements, going after whistleblowers, attacking former officials who have spoken out, and purging inspectors general perceived as disloyal. After January 20, with Trump and the rest of his administration out of office, people inside and outside of the federal government will be much freer to come forward with accounts of misconduct without fear of official reprisal. Former staff, particularly young conservatives who hope to have long careers in politics, may simply and self-interestedly want to distance themselves from the worst excesses of the past four years—now including the violent protest that Trump and his congressional allies incited after months of misleading their constituents about the results of the presidential election. It should be no surprise if we learn further deeply disturbing things about presidential conduct during this administration, including on topics that have not already been matters of media coverage and public concern over the last four years.
That is one reason why I’ve argued it is incumbent upon the Biden administration and the next attorney general to maintain full flexibility, at least in the near term, on the question of whether to federally investigate Trump for criminal misconduct. Trump’s capacity for corruption and mendacity has proven bottomless, and the number of people in power willing to aid and abet him has been distressingly high. It is not possible to predict what else will happen, even in the next couple of weeks, or what else we will learn in the future.
It now feels like aeons ago, but in the particular case of Saturday’s Trump–Raffensperger call, the reaction from legal commentators after the first excerpts were released was predictably swift, but some of them seemed to confirm the concerns within Biden’s orbit that any federal investigation of Trump would quickly become an overheated and counterproductive media circus. Michael Bromwich, a former federal prosecutor and Justice Department Inspector General, quickly posited on Twitter that Trump had committed a crime and that his best defense would be “insanity.” (He was decidedly more circumspect when later commenting to The New York Times.) Daniel Goldman, the former lead counsel for House Democrats in the Ukraine impeachment inquiry, identified one line from Trump to Raffensperger on the call—“It’s gonna be costly to you”—and said that he had “charged extortion in mob cases with similar language.” That tweet spread quickly, but was later followed by a correction—the quote was actually “costly in many ways”—in which Goldman called the actual language “a more veiled threat” than he had initially thought.
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The following morning, Neal Katyal, a former acting solicitor general in the Obama administration, was asked on MSNBC whether Trump had committed a crime. Katyal said, “Absolutely, it sure looks that way from everything on the tape”—before offering a nod to the possibility that there might be relevant facts outside of the call. Some of this was down to the Post’s curious editorial decision to briefly delay the posting of the full call and transcript following the initial excerpts. But one under-appreciated feature of Trump-era legal commentary is that the competition—for attention, for online “followers,” and for potentially lucrative media appearances—is fierce, creating incentives to reach fast and firm conclusions based on whatever information is at hand.
Meanwhile, the reactions from some conservative lawyers were transparently ridiculous. The talk radio host Hugh Hewitt chalked up the outrage to “Trump Derangement Syndrome.” The New York Times cited Matthew T. Sanderson, “a Republican election lawyer who has worked on several presidential campaigns,” reporting “that while it did appear that Mr. Trump was trying to intimidate Mr. Raffensperger, it was not clear that he violated the law.” Never mind that the most relevant federal and state statutes do not require a threat or intimidation of any sort; these comments look even more ludicrous in the wake of the violent occupation of the Capitol.
The Georgia law that has drawn the most attention makes it a felony if someone “solicits, requests, commands, importunes, or otherwise attempts to cause” another person to engage in election fraud. The statute is broadly worded, and the newly elected district attorney in Georgia’s Fulton County has suggested that her office will open an investigation.
At least prior to the insurrectionary chaos at the Capitol, there seemed to be a palpable desire among many liberals to let local prosecutors investigate the episode on their own, a path that would allow Biden and his attorney general to avoid allegations that they are pursuing Trump as a partisan vendetta. But, as with the continuing investigation by Manhattan District Attorney Cy Vance Jr. into the Trump Organization’s finances, there would be considerable costs to ceding the investigative ground to non-federal officials.
The notion that local prosecutors should be the appropriate recourse for investigating a president whose conduct implicated a matter of the utmost federal importance—the integrity of the country’s presidential election—is dubious on its face and, in any event, questionable even as a matter of political logic. And, amid the hyper-partisan state of conservative politics and the conservative media, both nationally and locally, there would be a considerable risk of the precedent being misused in the pursuit of a liberal president, given how many state and local prosecutors there are throughout the country, any one of whom could try the same thing whether it is warranted or not. One advantage of a state or local investigation is that it would be clearly immune from a self-pardon by Trump, but as I have previously noted, most scholars believe that a self-pardon would be constitutionally invalid, and if Trump really did commit a federal crime by trying to illegally change the election results to stay in power, that would be about as compelling a case as any to test the proposition in the courts—even if Wednesday’s events had never happened and had not made clearer than ever that Trump and his most fervent supporters are an existential threat to our democracy.
Now is hardly the time to be cautious about responsibly enforcing our laws. The people’s self-government has been too directly threatened for that. Regarding the legitimacy of electoral outcomes, the Justice Department’s handbook on prosecuting federal election crimes—published most recently in December 2017—notes that there are several “characteristics of the federal criminal justice system [that] support the federal prosecution of election crimes despite the primary role of the states in most facets of election administration.” One of them is that federal law enforcement is more removed “from local political forces and interests,” that state and local prosecutors “are usually more closely linked to local politics than are federal prosecutors,” and that a federal prosecution “may therefore be viewed by the public and the media as more impartial.” Another is that election fraud “investigations usually require a fairly large manpower commitment, which the federal government is normally better able to marshal than are local law enforcement authorities.”
Given how easily Trump and his attorneys outmaneuvered the lawyers who worked on former Special Counsel Robert Mueller’s investigation and the House impeachment inquiry—attributable, in no small part, to shameless and pervasive misrepresentations about the facts that were filtered through conservative media—it is tempting to let someone else have a run at him. However, these were among the best-resourced and most able government investigators in American history, so it is hard to see even the finest local prosecutor’s office outperforming them. There is now also the serious concern that state or local prosecutors could be deterred from taking steps that would anger Trump supporters in order to avoid threats of a violent and potentially life-threatening public uprising.
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If federal prosecutors were to pursue an investigation—the DOJ policy that prohibits the indictment of a sitting president does not apply after he leaves office, even for conduct that occurred while in office—there are at least two federal statutes that Trump’s conduct clearly implicates. One, the civil rights conspiracy statute (18 USC § 241), makes it a crime 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 Justice Department’s handbook explains, the statute has been used for nearly fifty years to prosecute federal election fraud—including efforts at “rendering false tabulations of votes”—and it “does not require that the conspiracy be successful.”
Another statute (18 USC § 20511(2)(B)) makes it a crime, among other things, to attempt “to deprive or defraud the residents of a State of a fair and impartially conducted election process” through the “tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent” under state law. The Justice Department’s handbook notes “the conceptual breadth of this provision,” but also states that the “the use of the word ‘willfully’” in the statute “indicates that federal prosecutors must be prepared to prove that the offender was aware that he or she was doing something unlawful”—a more stringent requirement to provide proof of intent than criminal statutes typically require.
The full audio of Trump’s hour-long call with Raffensperger—in which Trump presses Raffensperger to endorse just enough of the thoroughly debunked claims of widespread election fraud so that he can surpass Biden’s vote total—makes it clear that Trump wanted the result to change in his favor, but it seems to leave open the possibility that Trump actually believes those conspiracy theories. In this scenario, Trump may have lacked the requisite criminal intent to generate a false vote count because he is actually dumb or delusional enough to believe these things, despite having more informational resources at his disposal than anyone else in the world. Unfortunately, the theory cannot be ruled out on its face: Trump has embraced politically convenient conspiracy theories throughout his life, and given that he speaks semi-incoherently when left to his own devices, has a notoriously short attention span, and might very well fail an elementary school spelling test, his ability to process even moderately complex information is highly debatable. For those reasons, many observers had already concluded before Wednesday that a federal investigation of any sort is unlikely because the relevant statutes would require prosecutors to establish that Trump knows his claims are false, and Trump’s mental state is not clear from the recording.
This problem is not unusual in fraud cases—prosecutors often obtain statements from one person to another that are demonstrably false but need to establish the speaker’s mental state, either through other direct evidence or circumstantial evidence. The recording of the call is not the only possible evidence of Trump’s mental state, and treating it as such plays directly into the hands of Trump and his supporters—who, in the case of Trump’s call with the Ukrainian president, focused much of their defense on the notion that the White House’s call summary conclusively established that Trump had done nothing wrong. Of course, the subsequent investigation produced far more troubling facts beyond just what the call summary reflected—that is what investigations often do—in spite of the White House’s stonewalling of House investigators and refusal to produce key documents and witnesses, a strategy that would be much harder to pull off from outside the White House.
There are several investigative avenues available to determine whether Trump believes the theories that he advocated on the call or was simply pretending to do so. For instance, investigators could obtain any briefing papers or notes that had been given to Trump, which may or may not explain whether the claims are true. (In fact, Trump’s unusually competent and coherent recitation of these theories at the start of the call suggests that he was reading from talking points.) Investigators could also interview those closest to Trump who have spoken with him about these issues—a number that may be quite large but clearly includes Mark Meadows, his chief of staff, and the conservative lawyer Cleta Mitchell, both of whom actively participated in the call. (Some of the discussions and written material given to the president might be covered by the attorney-client privilege or work product protection, but Meadows’s comments on the call suggest he has been closely involved, and because he has no legitimate role on the Trump campaign’s legal team, the involvement of Meadows and others like him would substantially undermine the assertion of any such privileges.)
It is possible that everyone in Trump’s orbit who has been facilitating his effort is delusional and believes these ridiculous claims, but that seems unlikely. Even if some number of Trump’s advisers have actively misled the president in order to help him change the results of the election—and perhaps stoke some power grab approximating the outrageous display at the Capitol—that alone seems worth knowing and potentially prosecuting, now more than ever.
Investigators could also interview the Michigan state legislators who visited Trump at the White House to see what actually happened at that meeting or, for that matter, any other state officials he may have been in contact with since Election Day. (The calls could likely be identified through White House call records.) We also know very little about the discussions that Trump may have had with former Attorney General William Barr that resulted in Barr’s multiple changes to the policy on investigating federal election fraud, or any subsequent discussions before or after Barr was finally forced to conclude, over a month ago, that there had been no fraud “on a scale that could have effected a different outcome in the election”—a public repudiation of Trump that appears to have contributed to Barr’s premature departure from the administration.
Even before Wednesday’s events, Trump’s conduct following the call had proven informative. On Monday, a senior election official in Georgia, Gabriel Sterling, gave an efficient, thirty-minute press conference in which he systematically dismantled the claims that Trump had made in his call to Raffensperger—noting that he had already addressed them at length in prior public appearances and calling them “easily, provably false.” Is it possible that Trump had not heard those rebuttals before? Or that Trump himself had not already seen the press conference—or at least been briefed on it—when he went on stage at a rally later that night in Georgia and continued to repeat those same claims? How about when he spoke before thousands of supporters and incited his mob at the Capitol? Anything is possible, but these are questions that most federal prosecutors would not prejudge without some sort of investigation, including witness interviews and reviewing documents.
As with so much of his worst conduct in office, Trump may be saved by the sheer number of Republican politicians who have joined his shameful efforts. After the release of Trump’s call with Raffensperger, the conservative writer Yuval Levin lamented the fact that so many Republican politicians were “lying” to their voters about election fraud “in order to benefit from their outrage,” noting, correctly, that “to knowingly pretend a lie is true is, simply put, to lie.” An indictment of Trump or some of his advisers, then, would be (functionally, if not literally) an indictment of the Republican politicians who have actively facilitated Trump’s egregious conduct—by joining in his lies, or keeping quiet as they have spread throughout the country. This deliberate disinformation campaign has now endangered the constitutional predictability and reliability of presidential elections for decades to come, lending support to political violence by far-right extremists against our democracy.
If anyone but Trump had made that call on Saturday to Raffensperger, they would already have been under federal investigation, but Wednesday’s events at the Capitol further underscore the need to show the country—and Trump’s supporters, in particular—that he is just one man, no more above the law than any of us are. The political appointees and public corruption prosecutors in Trump’s Justice Department have been content to look the other way throughout this administration. We might hope that events in Washington would finally shame someone in a position of authority to finally do the right thing.
Realistically, though, the decision about whether to open a federal investigation may very well fall to Merrick Garland, Biden’s pick for attorney general, and the people who will help him lead Biden’s Justice Department (assuming Garland is confirmed). It is an unenviable problem but, unfortunately, there is a good chance that the question of whether to investigate Trump will rear its head more than once in the coming months and years, whether Biden administration officials like it or not. Biden’s wish to move beyond the divisiveness of the Trump years is laudable, and no doubt the department’s incoming leadership will take that desire seriously, but that unifying impulse also entails an imperative to renew the country’s commitment to the rule of law and to ensure everyone can be held accountable before it—even a former president.
