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The Jan. 6 hearings spotlight a Trump smoking gun in Georgia

It is never easy to prosecute a president or a former president, but the tape of Trump’s Jan. 2, 2021, call to Brad Raffensperger is our best option right now.

As the House Jan. 6 committee continues to present its compelling case against former President Donald Trump, we believe that conclusive proof of his illegal effort to steal the presidential election is hiding in plain sight. It is the tape of Trump’s Jan. 2, 2021, call urging Georgia Secretary of State Brad Raffensperger to just “find 11,780 votes.” The tape should provide a simple case for criminal prosecutors to bring against Trump after the hearings.

And with Raffensperger scheduled to testify before the committee Tuesday, that simple case will take center stage.

Trump has so far enjoyed near-impunity. He has gotten away with abuse after abuse.

Trump has so far enjoyed near-impunity. He has gotten away with abuse after abuse. Manhattan District Attorney Cy Vance spent years building a case against Trump for alleged financial crimes that at least one of his prosecutors believed constituted proof "beyond a reasonable doubt" — only to have a new DA abandon it. As president, Trump violated the Constitution’s emoluments clause but dodged multiple civil cases. Special counsel Robert Mueller’s report presented evidence of multiple instances of obstruction of justice, but he did not charge Trump because of Justice Department rules protecting sitting presidents. The House of Representatives impeached him twice, but the Senate failed to convict both times.

A case centered on the Georgia phone call, however, provides an antidote to that astonishing record. It is never easy to prosecute a president or a former president, but this prosecution is far and away the best option at this moment. And it should be pursued quickly — no matter what else emerges about the criminal conspiracy to overturn the 2020 presidential election.

This is not to take away from the Jan. 6 committee’s extraordinary work or the criminal cases it is helping to build. The committee’s investigation and the hearings have already provided powerful evidence that the former president engaged in a sweeping and wide-ranging criminal conspiracy in leading the first attempted presidential coup in U.S. history.

The Justice Department is also investigating the Jan. 6 attack on the Capitol. Its investigation has resulted, to date, in charges against more than 800 people with crimes directly related to the attack and guilty pleas from more than 300 people. The department is also investigating the events leading up to violence, including, for example, the scheme to have fake electors cast their states’ presidential electoral votes. 

U.S. District Judge David Carter already has found that Trump and his co-conspirators likely committed federal crimes, ruling it is “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan 6, 2021.” Carter concluded that Trump and John Eastman, a key adviser, “launched a campaign to overturn a democratic election, an action unprecedented in American history,” adding, “The illegality of the plan was obvious.” 

Even as the case continues to build in all these dimensions that Trump engaged in leading a criminal conspiracy to overturn the election, the hourlong tape-recorded Jan. 2 phone call Trump made to Raffensperger stands out as a smoking gun. Trump has no legal defense for this action.

The call is at the center of an investigation by Fulton County District Attorney Fani Willis. She has convened a special grand jury. But whatever the results, the Justice Department should also be pursuing this case. 

Trump made the call just four days before Congress’ Jan. 6 meeting to count the electoral votes and certify Joe Biden as the winner in the 2020 presidential election. Biden had been declared the winner in Georgia by 11,779 votes.

On the call, Trump pressured Raffensperger to just change the vote count: “I just want to find 11,780 votes, which is one more than we have because we won the state.”

Trump pressed Raffensperger to change the count to a number that would give him Georgia’s 16 electoral votes — and did so with no legal basis.

When Trump asked Raffensperger to “find” a specified number of new votes, he was asking him to rig the result. He did this with no concern about the truth and in the face of an initial vote count and two recounts that had already taken place — with all three showing Biden the winner.

Trump pressed Raffensperger to change the count to a number that would give him Georgia’s 16 electoral votes — and did so with no legal basis and no facts to justify his claims.

As part of his effort, Trump threatened Raffensperger with criminal prosecution if he did not provide these votes. The then-president complained that Raffensperger’s office was not acting on the claims of election fraud being promoted by Trump and his allies, including claims that ballots had been shredded and that unsigned ballots had been counted — all claims that Raffensperger’s office correctly denied.

Trump told Raffensperger that not acting on these claims was “a criminal offense.”

As convening a Georgia grand jury suggests, Trump’s effort to fix the vote count implicates various state criminal statutes. For example, Trump’s call for Raffensperger to shirk his statutory duties and tamper with results raises the issue of solicitation to commit election fraud (violating Ga. Code Ann. § 21-2-604(a)) and intentional interference with performance of election duties (Ga. Code Ann. § 21-2-597).

But Trump’s actions also suggest federal violations — including interfering with a lawful government function by craft, trickery or dishonesty (18 U.S.C. § 371).

Trump’s pressure on Raffensperger to arbitrarily and artificially change the vote count appears deceitful and dishonest, as do his specious claims of fraud, for which he had no proof. This shameless duplicity is one of the hallmarks of Trump’s corrupt philosophy of governance — “Trumpery,” which one of the authors surveys in a new book.   

Trump’s efforts to change the vote count in Georgia with no factual basis for doing so were also part of an effort to interfere with a lawful function of the federal government — the congressional count of electoral votes. Pressuring a state official to change a state’s vote count, and therefore alter its slate of electors sent to the Jan. 6 meeting of Congress, raises the issue of obstruction of Congress. That is a federal criminal violation of 18 U.S.C. § 1512, if proven.

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Attorney General Merrick Garland has said the Justice Department will “follow the facts wherever they lead” in investigating the effort to overturn the 2020 presidential election.

If the facts establish that Trump’s smoking-gun phone call to Raffensperger violated both state and federal criminal statutes — as we believe it did — private citizen Trump should be treated like any other lawbreaker: indicted and prosecuted to the full extent of the law by both the Justice Department and the Fulton County district attorney. 

When you look at Trump’s actions through the lens of his own tape-recorded words during the call to Raffensperger, it’s not that complicated.