Trump call with Georgia secretary of state draws bipartisan criticism
FOX News chief White House correspondent John Roberts joins 'Special Report' with the latest on leaked audio
For many legal analysts, President Trump remains a type of criminal Midas figure: everything he says or does turns instantly into a crime. This pattern is continuing to the very end of the Trump administration. Within minutes of the leaking of a Saturday call between Trump and Georgia election officials, the same experts were declaring yet another clear crime.
The loudest was Andrew Weissmann, whose desire to find a crime to use against Trump appears to be moving from the obsessional to the delusional. Since his departure as the top deputy to Special Counsel Robert Mueller, Weissmann (now an MSNBC analyst) seems intent on proving his critics correct about his profound bias against President Trump.
Weissmann recently called for prosecutors to use grand juries to pursue Trump and others in an unrelenting campaign based on unfounded legal theories. Now he is claiming that the president’s call with Georgia Secretary of State Brad Raffensperger is clear evidence of a criminal act. While I clearly come to these questions from the counter perspective of a criminal defense attorney, the claim is legally absurd.
When the tape was released, many of us immediately criticized the statement of the president that "I just want to find 11,780 votes, which is one more than we have because we won the state."
However, experts immediately declared this yet another clear criminal act and some people even called for a type of twilight impeachment in the last couple weeks of the Trump administration. Weissmann declared that the tape showed "criminal intent" as well as "proof of his motive and his pattern of similar activity."
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The problem is that Weissmann again left the criminal code and controlling case law behind in his blind pursuit of Trump. As with the obstruction allegations investigated by Mueller and the Ukrainian call that was the basis for Trump’s impeachment by the House of Representatives, this comes down to a question of intent.
While most experts are notably vague on the specific criminal provision, one possibility would be election fraud under 52 U.S. 20511. However, such an interpretation comes to a full stop at intent — a required showing of "knowingly and willfully" acting to subvert voting.
The call Trump participated in was a settlement discussion over election challenges with a variety of lawyers present, not some backroom at the Bada Bing club. The entire stated purpose of the challenges was to count what the Trump campaign alleged were uncounted votes that far surpassed the 11,780 deficit.
Trump repeatedly asserted that he won the election and continued to return to the fact that officials only needed to confirm 11,780 of those hundreds of thousands of allegedly uncounted ballots.
Nevertheless, experts like Anthony Michael Kreis, a professor at the Georgia State University College of Law, declared that Trump’s "only demand is to have votes tossed or invented to fabricate a win" and that "there’s no way to read this other than a blatant attempt to pressure Georgia officials to lie and alter legitimate election results with a wink and a nod to a looming consequence."
But Trump did not actually say that and it is not the only possible interpretation of what he did say. He was discussing what he viewed as uncounted votes that far exceeded the margin of roughly 12,000 and noting, as part of the request for access to data, that they do not need to find much to overturn the result.
In any criminal case, Trump would simply argue that he was restating the point of the pending cases in a settlement negotiation: that the election was not fair and that a review could easily flip the result given the margin.
A prosecutor would have to show that Trump clearly knew his theories were bogus and that he did not believe there were sufficient ballots to reach that number.
Even if prosecutors could find a basis for establishing intent, they would still be pushing fraud statutes beyond any intelligible limits without more direct evidence of intent. Ironically, this is the very issue that marred Weissmann’s career and the reason many of us viewed his selection by Mueller to be an egregious error.
Weissmann was responsible for the overextension of an obstruction provision in a jury instruction that led a unanimous Supreme Court to reverse the conviction in the Arthur Andersen case in 2005. Weissmann proceeded to make the same exaggerated claims with Mueller (which were apparently rejected by the staff) and has continued to do so as a MSNBC analyst.
Weissmann seems impervious to conflicting case law, including Supreme Court decisions rejecting such broad interpretations of fraud, bribery and extortion statutes in political corruption cases.
In Kelly v. United States, the Supreme Court threw out the convictions in the "Bridgegate" case and unanimously ruled that fraud laws are "limited in scope" and Congress "did not authorize federal prosecutors to "set standards of disclosure and good government for local and state officials."
Weissmann’s fraud prosecution would be based on a statement that could be easily defended as part of a settlement discussion without any clear threat or benefit discussed. They were discussing what Trump was seeking access to data and his belief that fraudulent, and possible criminal, conduct marred the results. One can reject those claims (as I have) without converting the matter into a faux criminal case.
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Yet, some are not satisfied with just a condemnation of Trump. They want a prosecution. To that end, another former prosecutor, Daniel Goldman, stepped forward to offer his own assurances of a criminal case to be made against Trump. (House Intelligence Committee Chairman Adam Schiff, D-Calif., previously hired Goldman, who earlier called Trump a "shameful" person who "doesn’t care about the country" and committed a variety of crimes).
Goldman focused on the line "It’s gonna be costly to you." Goldman said that "I’ve charged extortion in mob cases with similar language."
In reality, Trump said "it’s going to be very costly in many ways" which is very different than "it will be costly to you." The extortion theory is the same basic theory that was raised in the Trump impeachment hearing. I testified at that hearing and noted that this type of interpretation has been previously rejected by the Supreme Court.
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I would be interested to see the cases that Goldman charged solely on this type of line. The statement in a settlement that further litigation is going to be "costly" is hardly unprecedented. Moreover, Trump stated after that line: "I think you have to say that you’re going to reexamine it, and you can reexamine it, but reexamine it with people that want to find answers, not people that don’t want to find answers." If Goldman did bring cases on that type of evidence, it is chilling in its own right.
Of course, none of this matters. That is just law and this is legal entertainment. In our media echo chambers, such views are rarely challenged. Viewers hear what they hoped to hear from experts who are eager to supply endless theories of criminality. But the same flexibility and creativity applied to the criminal code does not extend to figures like Hunter or Joe Biden. Trump just has that criminal Midas touch.
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