Should Trump Be Prosecuted in Georgia?
By Robert Katz
Should Trump be prosecuted for his post-election effort to thwart the transfer of power to his democratically elected opponent? Some say no. Locking up the opposition is how autocracies run, not democracies, and the incentive of the losing party to graciously accept defeat is weakened when defeat means not just losing an election but going to jail.
On the other hand, the prosecution of an outlier who brazenly committed crimes in order to perpetuate his hold on power should stand as an exception to the rule. The precedent of permitting an ex-president to remain unaccountable for offenses that violate our most basic democratic principle is far worse, in my view, than the precedent of prosecuting a former president. If Trump committed crimes in the course of his effort to engineer a reversal of Biden’s electoral victory, he should be prosecuted for them. (And to be clear, this is a not a partisan matter: if a Democratic President were to commit similar crimes to hang on to power, s/he too should be prosecuted.)
But which crimes? Although the Congressional Committee investigating January 6 may yet uncover evidence of criminal conspiracy, as of this writing it seems insufficiently clear that Trump’s inflammatory rhetoric on and before January 6 was directed at inciting imminent lawless action. Therefore, a good case could be made that such rhetoric was protected by the First Amendment as the US Supreme Court has interpreted it in Brandenburg v. Ohio. A more likely prosecution comes from the events arising from Trump’s one-hour phone call to Georgia Secretary of State Brad Raffensperger, asking him to “find” the 11,780 votes he needed to overturn Joe Biden’s electoral win in Georgia. The phone call, which can be listened to here, contained a barrage of unproven allegations and vague threats of criminal prosecution and political payback if the former president didn’t get his way.
As recently reported, the district attorney of Fulton County, where most of Atlanta is situated, has convened a special grand jury to investigate whether criminal charges should be brought against the former president for that call and related actions. A 154 page report by the Brookings Institution says that Trump is “at substantial risk of possible state charges predicated on multiple crimes.”
As the report explains, the crime for which Trump is most likely to be charged and convicted is solicitation to interfere with an election which, under Georgia law, could carry a sentence of one to three years in prison. If Trump is charged, his defense is likely to be that he sincerely believed that he won Georgia, that fraud in Georgia was sufficiently widespread to steal the election from him in Biden’s favor, and that he was just asking Raffensperger to be diligent in doing his job. Therefore he lacked criminal intent.
The authors of the Brookings report have basically two responses to that defense. First, “it is legally irrelevant whether Trump thought he was the ‘true’ winner: …. A loser who believes he is a winner has no special license under Georgia law to solicit state officials to engage in conduct constituting a crime. There are ways to contest the election in which fraud is alleged to have been committed, but asking/demanding that the Secretary of State find the votes needed to overturn the election is not one of them.”
Second, the Brookings report points to the lack of any reasonable basis for Trump to believe he won Georgia: “There is an extraordinary absence of any evidence suggestive of irregularity in any respect in the Georgia process.…The fact that the existing outcome was arrived at and consistently reaffirmed in a process overseen by Republican officeholders, in a series of acts against interest, is a powerful refutation of any such argument Trump might offer.”
Although it’s true Trump could still sincerely believe that he had won without having a reasonable basis for that belief, the fact that he had no reasonable basis goes a long way towards proving that in reality he did not believe it. And it is unlikely that Trump would allow his defense team to simply argue that he had a sincere, even if unreasonable, belief he had won Georgia. Anything that smacks of an admission that Trump’s claim of a stolen election has been a Big Lie would be a disaster (to use Trump’s favorite word) for his continued hold on the Republican party.
And this brings us to the other benefit of holding Trump to account for what he did in Georgia. The trial could become a forum for exposing the Big Lie. Just bringing Trump into a trial setting and subjecting him to cross-examination would be Kryptonite to his main superpower, his ability to con his followers into believing whatever he tells them. We all know there are different Trumps. There is Teleprompter Trump, who reads from a conventional Washington-speak script, his wooden delivery allowing him to distance himself from the words he is speaking. There is MAGA Rally Trump, letting it all hang out with his base. Search for Trump Deposition on You Tube and you’ll find someone different altogether. With Deposition Trump, gone is the bombast, the playing to a crowd. Instead, we see someone who is carefully parsing his words, concerned about legal jeopardy, his usual con artistry way toned down. Trial Trump would be, I reckon, similar to Deposition Trump, his bluster reined in by a judge and a prosecutor and a scruple against committing perjury when prison time is in the offing.
No doubt even if Trump is thus exposed, there will be a core of true believers who will accept at face value his sloganeering about being the victim of a Witch Hunt. But a weak trial performance by Trump that shows his stolen election claims were unabashedly free of evidence may peel off a considerable fraction of the Trump fan base, who finally dessert the Naked Emperor.
In anticipation of Trump’s prosecution, let’s not kid ourselves into thinking that it will be a cure-all for what ails society. Even if Trump is put out of commission with a prison sentence, the forces that have given him oxygen would still be with us. But a Trump trial might just be an important step in righting a political system swamped by delusions, teetering on the brink.
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.