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Notes -
Trump has been indicted (again), this time in Georgia, under RICO charges. The charges against him and a large number of co-conspirators relate to efforts to overturn the 2020 election. Full indictment here.
We've seen a range of charges laid against Trump in varying jurisdictions, and I think it's fair to say the cases have varying strength. These new charges seem to me to be on the strong end of the spectrum.
Helpfully, the indictment is painfully clear at every point as to what particular acts constitute which particular crimes or elements of crimes. This makes it a lot easier to assess for an uneducated layman like me. On at least some of the charges, it would appear that he's deeply screwed. E.g. "Solicitation of Violation of Oath by Public Officer" seems to be open and shut, and carries a minimum 1 year sentence. He also has no capacity to pardon himself if he is elected President, as these are not federal charges.
As far as I can tell Trump's only hope to escape conviction here is jury nullification.
Are you joking or something? There's no way I'm reading a ~100 page indictment, but if that is your idea of a strong charge then the rest of it is probably not worth reading anyways.
Have you listened to the Raffensberger call? It's extremely clear (to me) that Trump is claiming that there are many fraudulent ballots in Georgia (he goes on and on about it, and why he thinks so) -- then asks the people on the call to try to locate some of them. It's right there in the first few minutes.
It may be less clear to you for whatever reasons, but surely this is at least a plausible interpretation of what Trump is trying to say -- and if this were the case, he is definitely not asking anyone to violate their oath. Finding such votes would be required by their oath, surely?
I'm aware that the media has widely reported that Trump was asking R. to fabricate some votes so he could win (probably significantly poisoning the jury pool in the process) but presumably the court will hear the actual call rather than reading Washington Post clippings -- and if you think this interpretation is open-shut I really don't know what to say.
Don't forget the Raffensberger call was a settlement conference between attorneys and clients and its disclosure itself is illegal and should have resulted in sanction. It was leaked only in part in order to give the media the chaff to craft this entire narrative. Listening to the entire call makes it clear what was going on, especially given the context of this being a settlement conference protected by the requirement of confidentiality!
They used the settlement conference as a trap in order to get some Trump soundbites which they could leak and then they and the media could knowingly lie about to craft this entire setup.
Interesting, I did not know this! Thanks.
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While I don’t know that the “oath of office” stuff holds up, I did listen to the Raffensperger call back in the day. Commentary here. For anyone else who wants to read the transcript, it’s here.
Trump was making his preferred outcome very clear. If there was fraud, the President of the United States would be happy. If there wasn’t, he would be unhappy, and some people might face criminal charges.
You can see how this is truth-agnostic. Trump may well have believed it. But he would say the same things whether or not he did. More importantly, he was suggesting what Raffensperger should report, whether or not he did.
Again, I’m not sure that this rises to the intent standard used by OCGA 16-4-7. It is plausibly deniable. I just don’t know how one can read that transcript and come away thinking the guy wanted the truth. He wanted to win.
And I don't know how one can read it and come away with the idea that he didn't think there'd been massive fraud -- at least 90% of the call is him railing on about various instances of fraudulent balloting he claims his team had uncovered, and pushing the Georgia officials for data that they were holding back so that he could prove more that he was sure existed but couldn't prove. I'm not sure what evidence you are using to claim that he would have made these claims regardless -- it seems unfalsifiable. New Hampshire and Maine had similar percent margins (and fewer absolute votes) for Biden as compared to Wisconsin -- why didn't Trump try to flip those states too, if he was making allegations unrelated to whatever evidence of fraud that he thought he had?
Anyways my point is that I don't see how anyone can think that this is open-and-shut in anything but Trump's favour -- we are now talking about serious criminal indictments, and this tape surely raises at least a reasonable doubt in terms of mens rea? He lays out all kinds of specific stuff that he (claims to) believe to be true evidence of fraud.
If anything, the Raffensberger call seems like decent evidence for the defense on the Smith (I think? I may be confused now that there are so many) indictment -- it's hard to listen to the guy and believe that he is lying about his beliefs as to whether there was fraud in Georgia (and elsewhere, bleeding into the call). He sounds quite emotional at times.
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I do wonder if Stacey Abrams consent decree could fit into this rubric somehow.
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Also included in your quote is the request made to David Ralston, speaker of the house, asking him to convene a special session of the house for the purpose of appointing fake electors.
What's illegal about asking the House to convene for that purpose? It's like saying we have proof Trump illegally ordered a Hawaiian pizza, we even have recordings of him requesting one. Ok -- but what about that is illegal?
Trump is charged under OCGA 16-4-7, which says
The felonious conduct he is accused of trying to solicit from Ralston is under OCGA 16-10-1, which says
The oath taken by Ralston includes swearing to support and uphold the Constitution of the United States.
The Constitution of the United States requires that presidential electors are chosen by the manner directed by the state legislatures.
The elector-selection manner directed by the state legislature of Georgia is described in OCGA 21-2-499, which says
The elector appointment method advocated by Trump obviously does not accord with these requirements.
In conclusion, Trump asked Ralston to participate in appointing presidential electors in a manner contrary to Georgia law, which is contrary to the US Constitution, which is contrary to the oath of office Ralston took, therefore Trump is guilty of Solicitation of Violation of Oath by a Public Officer.
By this logic, every time a President does something unconstitutional (eg, Biden's student loan forgiveness plan), then everyone in Georgia who promoted that policy or petitioned for that policy committed a felony. The prosecutor's use of this law is absolute madness, it criminalizes the losing side of any political battle involving Constitutional issues.
I think the importance difference though is whether those petitioning for a policy themselves know/consider it to be contrary to the constitution, rather than whether it actually is ruled as such by courts. So the point is that Trump didn't care if it was contrary to the constitution, he wanted it done anyway.
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He said it on the phone and everything, lock him up!
You're just criminalizing the First Amendment, obviously Trump has a right to ask officials to consider his schemes, this is a crazy reinterpretation of existing norms that would never be tolerated if the target wasn't Trump. Your argument is inherently contradictory, look:
So, if the Georgia state legislature changed the way presidential electors were chosen, what would be unconstitutional about that? What would he incorrect about Trump asking for such if Georgia had actually granted it?
You can Frankenstein together different parts of the law code to create whatever outcome you want, but the result is still a legal abomination. Trump asked for something we decided was illegal, therefore he cajoled officers into violating their oath of office, therefore, jail! If this really impresses you, if this really strikes you as a sound legal and moral argument, I don't know what to say man. This is a blueprint for destroying democracy, because anything could be defined as asking an official to violate their oath of office. Did you protest against the vaccine, when vaccines are in the public interest, and the public interest is in the oath of office? Did your remarks incite hatred by soliciting officials to [...]? You're crazy if you don't see the implication here, and you're sticking your head in the sand if your only counterargument is to cite more laws at me, as if the existence of a statute is evidence in favor of the validity of your interpretation of it.
Give state officials the power to jail federal politicians for making requests of other politicians, and you literally do not have a democracy. It's just rule by lawfare.
Process, my dude. The legislature of Georgia has every right to change their method for selecting electors. They just need to amend the law. And Trump would be entirely in his rights to ask them to do that.
Trump did not ask them to change the prescribed method for choosing electors. He asked them to violate it. The distinction matters. You're allowed to change the law but you're not allowed to break the law.
Which oath of office would that be?
Don't be obtuse, you know what my argument is and you have constructed a technicality that in no way addresses it. Who decides the difference between asking for the law to be broken and the law to be changed? You make it sound as though your problem isn't with anything Trump did, but if only he had worded his request slightly differently, everything would have been fine. Come on, charging Trump with "soliciting" officers to "violate their oaths" is crazy, and the fact that this impresses you makes me question your credibility. Do you really not see any problems with this line of argument? The oath of office is a formality that is never enforced, you aren't worried about any precedents here, any unintended consequences, at all? Not even a little bit?
The difference is very clear. There is a prescribed process for changing the law. You introduce a bill, it gets voted on, it gets signed, it becomes an act. You don't just appoint someone as an elector who has not met the legislated requirements, which is what Trump asked for.
I wouldn't describe it as "slightly" differently, the distinction is large and important in my eyes. It would not have been the same request. But yes, if he had done legal things instead of illegal things, he would indeed have been fine.
If enforcing the law on a criminal sets a precedent, it would be a good precedent to set.
Now, please answer my question. What oath of office includes "the public interest"? I looked and couldn't find one. I'm sure you wouldn't just make something like that up.
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Putting pineapple on pizza is a crime against God and Nature (and pizza), and accordingly subject to universal jurisdiction even in the absence of specific local statutory law . I thought this was common knowledge on a forum where high IQ and good taste were the default.
I strenuously disagree with a lot of your political positions but I'm extremely glad that, in the spirit of the Motte, I'm able to reach across the aisle and give you a fist-bump in recognition of your excellent taste in this matter.
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If Trump thinks the election has been stolen, then the electors aren't fake (from Trump's point of view, obviously).
This sounds about the same as the Smith indictment, and is far from open-shut for the same reasons. (mens rea, essentially)
It's the same principle as - you think your wife conspired with a corrupt family court to take your children, so you forge documentation to get a school to turn them over to you, breaking a court order. Maybe you're right. But there are processes for addressing that, and if you ignore those (or in trump's case try them but perform terribly and don't prevail), you don't have a right to lie and manipulate other processes.
This is a fundamental way modern governance works. The process prevents conflict by giving both individuals and the state a - usually fair - 'final authority' to appeal to, instead of using violence, coercion, or deception. Even if it's sometimes wrong, it's better to have a single source of truth to prevent conflict - whether that's individual conflict over who owns what or who deserves what, or political conflict over who has power. It's known who wins and how that's decided, according to the process and the court, the monopoly on violence enforces it, so nobody bothers to even fight. If you're wrongfully convicted, your supporters don't suicide bomb the cops/accusers and start a blood feud, they collect evidence and appeal. If someone screws you on a deal, you sue based on the contract both parties signed. If you lose an election and are upset, you file a lawsuit.
It could be argued this is a fundamental pillar holding up modern life. I'm not entirely sure - certainly a neoreactionary government would have less of this at the top-level, but that isn't ours. And if the election wasn't stolen (and I'm very unconvinced by arguments that it was), then Trump's actions is not good for democracy.
This is exactly what the neoreactionary critique gets at, though. In this scenario, the process is your king; your final authority. And because those processes are carried out by people, ultimately those people are your kings.
In short, this way of thinking creates and sustains an oligarchic form of government. Don’t like the process? Don’t like who runs it? Then appeal. By what means? A process. Who runs that process? You’ve already guessed.
Honestly, I agree with you that this is probably the best way of doing things a lot of the time, as opposed to direct personal power or mob democracy. But this flaw is inherent and IMO when the bureaucracy gets too powerful and too uniform then this form of government starts to curdle.
You're allowed to change the people who run the process.
(How? By a process...)
But still. You can indeed change the people in charge and they can indeed change the processes of government. Even if in theory you can get into a closed loop where the people in power use their power to stay in power, that is not currently the case in reality. Although Trump did give it the old college try.
That’s exactly the point under discussion, no? The allegation from trump’s side is that this has already happened, and that following standard procedure for resolving disputed elections is therefore meaningless because the entire bureaucracy is controlled by the enemy.
Personally, though, I was thinking of the Civil Service, who I very definitely can’t vote out of office. From where I’m standing Britain has been in that closed loop for at least 20 years now.
I assure you that politicians very much do have the power to shut down departments, fire civil servants, etc. And if none of the options on your ballot paper are promising to do that, you can stand for election yourself.
The obstacle you face is not that the civil service is all-powerful. It's that your fellow citizens disagree with you.
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I thought that's what we voted on in 2016, but instead the people in charge of the process didn't play fair, and instead hamstrung the duly elected executive at every opportunity. The uniparty did not play fair.
Instead the 2016 election remains Trump's greatest crime. He defied the uniparty and must be punished for doing so. I have yet to see anything that contradicts this interpretation, and so it remains the lens through which I view these developments.
Might there be other explanations for Trump's failure than the forces of Mordor using dark plots to defeat our lone hero? Maybe Trump was an ineffective executive with a lot more bluster than execution, who was too stubborn to not commit crimes that didn't benefit him at all?
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Yes it is. The deep state is in power and will forever be in power unless someone can fire 3/4 of the federal government which is impossible due to lawfare. The bureaucracy is a self-sustaining cancer at this point.
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I don't believe this is true. Even if you think fraud has occurred, you can't just appoint electors based on what you think the result would have been. There's a process that has to be followed.
Even if Trump believes that the process has been corrupted, it's still illegal for him to solicit a public official to subvert the process.
By analogy, let's say I buy a lottery ticket but then someone steals it from me. The lottery gets drawn, and I am convinced I had the winning numbers. The lottery won't pay me out based on my insistence that I would have had the winning numbers if they hadn't been stolen. I am not then allowed to rob the lottery office to rectify the theft I suffered - even if I am correct that I had the numbers.
Now, perhaps I am misunderstanding the law in some important way here - I am not a lawyer, and much less a Georgia lawyer. But my understanding here is that the effort to solicit a public official in a plan to appoint electors who could not be lawfully appointed is straightforwardly illegal.
The electors aren't fake either way. They are proposed alternative electors, which is how past elector disputes have been done. There was never any conspiracy to present them as the primary electors.
The irregular Georgia electors submitted a "Certificate of Vote" to Pence's office where they claimed to be the primary electors, as did the irregular electors in Arizona, Michigan and Nevada. The irregular electors in Michigan are being prosecuted locally for falsifying an official document. It looks like most of the irregular electors in Georgia have rolled and are going to testify against Trump.
The irregular electors in New Mexico and Pennsylvania worded their certificates to be contingent on their later being determined to be the real electors, which keeps them out of legal trouble, but means the certificates are less useful for the Eastman/Chesebro scheme to have Pence overturn the election on Jan 6th.
Aha! The whole time I was writing about the Georgia charges, I was thinking “this wouldn’t have been a criminal charge if they’d covered their asses better.” It’s good to know some of the other groups agreed.
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Others disagree -- there was an arguably legal path to this, and it has happened in the past. Obviously much depends on the particulars, but criminalizing the advancement of legal theories which may or may not apply in a given case seems like a bad idea. (not to mention conflicting pretty badly with the first amendment)
But you are allowed to write a letter to the head of the state lotto suggesting that they should give you the money -- you can even go to the press and say that's what they should do!
If this is true, then everyone who issued tweets encouraging faithless electors in 2016 is also straightforwardly guilty.
Do members of the electoral college swear an oath of office to uphold the constitution? Does Georgia have a law requiring electors to cast their votes according to the election results? These are serious questions, I sincerely don't know.
If they do, and a person called an elector from Georgia and asked them to violate the law by being a faithless elector, then yes it does appear that such a person would be straightforwardly guilty.
No - among other places, this is discussed in Baude essay on Section 3, because it creates an interesting lacuna (a presidential elector who engages in an insurrection is not disqualified from future office, but an oath-taking officer who engages in an insurrection is disqualified from being a presidential elector).
No - see here (although that is the status now, not as of 2020). According to that map, the only states where being a faithless elector is a crime (and thus the only ones where secondary liability for advocating a crime could conceivably trigger) are both Carolinas, New Mexico and Oklahoma. The more normal approach is to declare the faithless elector's vote void and to allow the other electors for that state to replace them.
In addition, a rando tweeting into the aether would be protected by the 1st amendment in a way that a high government official making a personal phone call to an individual elector backed up by detailed (false) arguments of why the election was fraudulent and vague threats of criminal prosecution for covering up the fraud would not be - the law distinguishes between non-serious and serious crime-encouraging speech.
Not sure whether things were much different in 2016, but I do seem to recall some electors not from any of those states being penalized -- it's irrelevant though.
Regardless of which states attach penalties, electors in most (all?) states do in fact swear an oath to vote according to the results in their state -- the debatable part would be whether they can be considered "public officials" -- which I'd argue against, but "parts of this indictment are based on debatable legal theories" does not seem to be holding anybody up in this business!
Anyways, if you acknowledge that certain states would consider faithless electorism to be some kind of crime, even one would be enough -- this was very much a nationwide, organized, and well funded advocacy exercise: https://en.wikipedia.org/wiki/Faithless_electors_in_the_2016_United_States_presidential_election#Public_outreach_to_electors
A conspiracy, if you will! So while random twitterati might squeak by on whatever's left of the 1A, I think your assertion that (say) The Hamilton Electors would be in a different position here than Trump and his cohorts is unsupported.
(I'd say it's actually somewhat worse in that their justification was not "We think Trump committed fraud" but rather "We don't like Trump and want to subvert the will of the voters", and also that they actually succeeded in flipping some electors! At least a few were fined as I recall.)
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Thank you!
I find it a bit bemusing when people pose these questions with the implication that if someone in a somewhat-similar-but-somewhat-different situation wasn't charged with the same crime, there must be some kind of corruption or double standard. Most the time it's just that details are different and details matter.
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Biden swore to uphold the Constitution, but created the "Covid" eviction moratorium, which was unconstitutional. If he asks someone to violate the law by preventing a landlord from getting rid of a tenant, is he straightforwardly guilty?
Under OCGA 16-4-7? I wouldn't think so, no. I don't believe that a landlord failing to evict a tenant would constitute a felony.
Was there some other statute you were thinking of? If so you'll need to point me to it.
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On the tweeting for faithless electors that gets a lot of Logan Act vibes. Where if that was a crime then everyone is guilty whoever once tweeted about geopolitics
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