What acts committed by Donald Trump are alleged to have been done in furtherance of the conspiracy?
First and foremost is Trump’s claim that he won the 2020 Presidential election. Allegedly, he made this claim knowing that he had not won. “On or about the 4th day of November 2020,” the Georgia Indictment reads, “DONALD JOHN TRUMP made (a) nationally televised speech falsely declaring victory in the 2020 presidential election.” How do the prosecutors know this statement to have been false? “Approximately four days earlier, on or about October 31, 2020, DONALD JOHN TRUMP discussed (a) draft speech with unindicted coconspirator Individual l, whose identity is known to the Grand Jury, that falsely declared victory and falsely claimed voter fraud. The speech was an overt act in furtherance of the conspiracy.”
In other words, it is alleged that Trump gave his speech on November 4, knowing that his claims of victory were false. Yet, there is no proof offered for this assertion. The reference to the “unindicted co-conspirator” is either a “red herring” or a misstatement – just because Trump discussed his proposed election night speech with someone days before he gave it doesn’t mean Trump was going to falsely claim he won. It could just as easily mean that the former President anticipated victory.
What exactly did Trump say that night? “It’s…clear that we have won Georgia. We’re up by 2.5% or 117,000 votes with only 7% left. They’re never going to catch us. They can’t catch us…We also, if you look and you see Arizona, we have a lot of life in that. And somebody declared that it was a victory for… And maybe it will be. I mean, that’s possible…certainly there were a lot of votes out there that we could get because we’re now just coming into what they call Trump territory. I don’t know what you call it. But these were friendly Trump voters. And that could be overturned.”
Of course, these predictions turned out to be incorrect. But Willis’ charges seem more focused on this part of the speech; “(A)ll of a sudden everything just stopped… This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the US Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list. Okay? It’s a very sad moment. To me this is a very sad moment and we will win this. And as far as I’m concerned, we already have won it.”
Allegations regarding this speech are also made in Smith’s second federal indictment; “Despite having lost, the Defendant was determined to remain in power…following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false.”
Of course, it is unclear how either prosecutor expects to prove that Donald Trump was not truthful when he made these allegations of fraud. As described by the Christian Science Monitor, “Mr. Trump’s defense against these…charges will likely rely at least in part on the insistence that he continued to believe these claims, notwithstanding others’ objections, and that his actions were thus not corrupt at heart. The outcome of crucial parts of the case could thus depend on a jury’s belief about Mr. Trump’s state of mind – a difficult judgment when it comes to a man whose career has often involved bombast, stubbornness, and, at the least, a fondness for exaggeration.”
Another focus of both indictments is the attempt by the Trump campaign to seek alternate electors for appointment to the Electoral College. According to Smith, the former President and his “co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors.”
According to Willis, three members of the Trump “organization and a group of unindicted co-conspirators “committed the felony offense of IMPERSONATING PUBLIC OFFICER…in Fulton County, Georgia, by unlawfully falsely holding themselves out as the duly elected and qualified presidential electors from the State of Georgia, public officers, with intent to mislead the President of the United States Senate…into believing that they actually were such officers by placing in the United States mail to said persons document titled “CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA.” This was an act of racketeering activity…and an overt act in furtherance of the conspiracy.”
We have previously discussed the difficulty of criminalizing the political effort to seat alternate electors. In particular we quoted Constitutional Law Professor Ed Foley, who stated that “there are reasons to be wary of prosecuting any claimed electoral votes sent to Congress… the better course seemingly would be to reject frivolous claims as unworthy of serious consideration…rather than by endeavoring to imprison these frivolous claimants for asserting their preposterous arguments.”
Then there are the events of January 2, 2021, when Trump famously spoke by telephone with Georgia Secretary of State Brad Raffensperger and “repeatedly asked (him) to ‘find’ more than 11,000 ballots needed to overcome the gap between Trump and Biden in the state, thereby flipping the state in his favor. ‘The people of Georgia are angry, the people in the country are angry. And there’s nothing wrong with saying, you know, that you’ve recalculated,’ Trump told Raffensperger before questioning the secretary about a ‘rumor’ that ballots for him were ‘shredded’ in Fulton County, which is home to Atlanta, the state’s largest city and a major Democratic bastion. ‘All I want to do is this,’ the president continued. ‘I just want to find 11,780 votes, which is one more than we have. Because we won the state.'”
This phone call is charged in the Georgia indictment as Act #112 in furtherance of the “criminal enterprise.” Trump is alleged to have engaged in “unlawfully soliciting, requesting, and importuning Georgia Secretary of State Brad Raffensperger, public officer, to engage in conduct constituting the felony offense of Violation of Oath by Public Officer…by unlawfully altering, unlawfully adjusting, and otherwise unlawfully influencing the certified returns for presidential electors for the November 3, 2020, presidential election in Georgia, in willful and intentional violation of the terms of the oath of said person as prescribed by law, with intent that said person engage in said conduct.”
This phone call is also described in Smith’s indictment as follows: “(F)our days before Congress’s certification proceeding, the Defendant and others called Georgia’s Secretary of State. During the call, the Defendant lied to the Georgia Secretary of State to induce him to alter Georgia’s popular vote count and call into question the validity of the Biden electors’ vote…(t)he Defendant said that he needed to ‘find’ 11,780 votes, and insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud as he demanded.”
Yet, there is a more innocent explanation for the January 2 call offered by former federal prosecutor and George Washington University Law Professor Jonathan Turley; “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…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.”
As to whether or not Trump threatened the Georgia Secretary of State, as Smith asserts, Turley notes that “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…(any) 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…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.”
Turley also reiterates the central issue of both Smith’s second federal indictment, and Willis’ charges; “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.”
In general, then, much of Trump’s defense will be the same in both of these cases. Trump will assert that he truly believed he won the election, and that he believed there to be widespread voter fraud in Georgia, and other states, fraud that has continued to be uncovered as time goes on.
There is support for this position. In February of 2021, “Georgia election officials (referred) for possible criminal prosecution a potential voter fraud case involving a group recently linked to (U.S. Sen. Raphael Warnock) – The New Georgia Project… (i(t’s among 35 cases involving potential violations of election law being sent from the State Election Board to the attorney general or local prosecutors…(t)he New Georgia Project, which bills itself as a nonpartisan effort to register voters, is accused of submitting 1,268 voter registration applications after the 10-day deadline to do so.”
Perhaps instances of voter fraud like this changed the outcome of the election – perhaps they did not. But in either case, the same problem remains; How do you prove beyond a reasonable doubt that Donald Trump did not believe his own assertions that he was cheated, and that he really won the 2020 Presidential election?
You can be sure that the former President will continue to make these assertions to anyone who will listen – which calls to mind another famous phrase by Yogi Berra – “It ain’t over ’til it’s over.”
Judge John Wilson (ret.) served on the bench in NYC
Illustration: Pixabay