Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
When President Donald Trump called Georgia Secretary of State Brad Raffensperger and implored him to somehow “find” exactly enough votes for Trump to win the state, Trump certainly abused his power and, beyond that, might well have committed criminal offenses. We can no longer write off Trump’s dangerous, potentially criminal conduct as merely “Trump being Trump.” It’s time for prosecutors to do their jobs.
At a minimum, prosecutors at both the federal and state levels need to dig in and take a hard look here. Trump’s conduct first could have violated federal law that prohibits a person from “knowingly and willfully depriv(ing) or defraud(ing)… the residents of a State of a fair and impartially conducted election process by… the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.”
There’s no real question that Trump asked Raffensperger to count ballots that were never actually cast for him. Trump’s theory that he won Georgia, and the presidential election as a whole, is a madcap patchwork of self-perpetuating conspiracy theories, utterly divorced from reality. In fact, everybody from Trump’s former attorney general to the FBI to the Department of Homeland Security to dozens of judges across the country (appointed by both political parties) have soundly rejected Trump’s claim of widespread voter fraud.
Perversely, Trump’s best defense here might be that he actually – however delusional it may sound – believes he won Georgia and had votes stolen from him. In that case, it would be difficult for prosecutors to prove that the ballots Trump seeks to have counted were “known by the person to be materially false.”
But a prosecutor might point to Trump’s own language to counter that defense. Trump didn’t ask Raffensperger simply to count all the votes, but rather to “find” – Trump’s own word – exactly 11,780 ballots, which would give Trump a win in Georgia by one vote. That doesn’t sound like a true belief that he won; that sounds like an effort to manufacture a win.
President-elect Joe Biden has stated publicly that he will respect the Justice Department’s independence: “I’m not going to be telling them what they have to do and don’t have to do. I’m not going to be saying go prosecute A, B or C – I’m not going to be telling them.” Biden is absolutely right to stay out of the Justice Department’s prosecutorial decision-making.
But, according to NBC News, Biden also reportedly does not want his presidency to be distracted by investigations of the former president. If true, on that count, Biden would be wrong. It’s simply not acceptable for prosecutors to glide past Trump’s misconduct – and to decline even to investigate – solely for fear of ruffling some feathers. Sometimes prosecutors have to take hard looks at powerful people. It’s unacceptable to take a pass on a case merely because it might upset political tranquility in Washington, DC.
Georgia state-level prosecutors also have a role to play here. Georgia state law is similar to federal law; it prohibits a person from “solicit(ing)” or “request(ing)” that another person violate election law, including tampering with vote counts or reporting false election returns.
Ultimately, Georgia prosecutors could be the only ones left standing. If Trump tries to issue a pardon to himself during his last days in office, that pardon – even if it was legally valid, which is far from certain – would protect him only against federal charges. But a presidential pardon has no impact on state-level charges.
I spent 14-plus years as a federal and state prosecutor. I understand how difficult it can be to prove a crime based on the subject’s state of mind. And I fully appreciate the political and practical issues that could accompany a potential criminal charge against the prior president. It is fair for prosecutors to weigh these concerns. But prosecutors are simply not doing their jobs if they don’t at least commit to investigate, find all the relevant facts, and then make a decision about whether a criminal charge is warranted. To not even open an investigation – to refuse to even dig in and get all the facts – would be an abdication of prosecutorial duty.
Now, your questions
Mike (Oregon): If the same political party controlled both the House and Senate, could they legally vote to overturn electoral votes cast for the other party’s presidential candidate?
Fortunately, this has never happened. But the Electoral Count Act of 1887 seems, on its face, to permit such a possibility. That law provides that, if at least one member of both the House and Senate lodges an objection to the electoral vote count, then Congress must debate the issue. At that point, if a majority of both the House and Senate agree, then Congress could reject certain electoral votes.
But there is a legitimate argument that the federal law itself is unconstitutional because it violates separation of powers principles to empower Congress to unilaterally override the vote of the citizenry and choose the president on its own. At a minimum, if one political party ever did go so far as to try this, it would almost certainly be met with a substantial legal challenge that likely would wind up in the Supreme Court for resolution.
Brenda (Switzerland): Is there any way the inauguration date can be postponed, as suggested by White House trade adviser Peter Navarro?
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As a practical matter, no. The 20th Amendment to the Constitution specifically provides that the terms of the president and vice president end precisely at noon on January 20. At that point, the new president and vice president are sworn in at the inauguration ceremony. The only way to change that date is by amending the Constitution, a laborious process that requires approval from two-thirds of the US Senate, two-thirds of the House of Representatives and ratification by three-fourths of all states. (There are other even more complex ways to amend the Constitution as well). There is no realistic way this happens before the approaching January 20 date, and there is no particular political impetus behind such a move in the long term either.