- [Donald] I just wanna find 11,780 votes. - Well, it took some time, but it looks like we finally
found some voter fraud. We're only a couple of days into 2021 and there is already a new Trump tape. - [Donald] I have to find 12,000 votes and I have them times a lot,
and therefore I won the state. - It's been just about a
year since President Trump made the perfect phone call to Ukraine, where he attempted to
leverage over $400 million in American taxpayer aid to Ukraine. - That call was perfect. It
couldn't have been nicer. - In an attempt to get help against his main political
rival, Joe Biden, but it appears that President Trump is not done with the 2020 election. Now, The Washington Post
has obtained bombshell audio of over one-hour-long phone call between on the one hand, President Trump, Mark Meadows and a
lawyer for the president, Cleta Mitchell of the
firm Foley & Lardner, and on the other hand, Georgia's Secretary of
State, Brad Raffensperger, and Secretary of State
General Counsel, Ryan Germany. And the parties, for over an hour, discussed the Georgia election. And during this call,
President Trump, shall we say, expresses his extreme concern
about the numbers in Georgia that the certified
election results have gone for Joe Biden, the president elect. And on the other hand,
Georgia's Secretary of State, Brad Raffensperger, says
that the numbers are correct, that there was no impropriety and that they are very
confident in those numbers and that the information the president has is at best incorrect. But our question for today is whether the newest leaked audio has put President Trump in
criminal jeopardy or not. Now, I'm not going to go
into whether you can indict a sitting president, because
we've talked about that a million times on this channel. And also President Trump is not going to be the sitting
president for very long. Also, let's not get bogged down in whether he can pardon himself. Moving on. And not surprisingly, already a number of
right-wing outlets are saying that the crime is not
the phone call itself, but the fact that someone would dare to leak a non-private phone call with the president of the United States. Though I think those arguments, not only are they made in bad faith, but here they don't hold water because on the morning
that the tape was released, President Trump tweeted out, "I spoke to Secretary of State
Brad Raffensperger yesterday about Fulton County and
voter fraud in Georgia. He was unwilling or
unable to answer questions such as the ballots under the table scam, ballot destruction, out-of-state voters, dead voters, and more. He has no clue!" To which Raffensperger responded. - There was no agreement, and we didn't know what the
purpose of the call really was. I assumed it was about
the November election, really, Wednesday. If President Trump wouldn't
have tweeted out anything and would have stayed silent, we would have stayed silent as well. - And some people are claiming
that this is a confidential settlement conference
regarding litigation. And while there is such a thing as confidential settlement agreements, I've participated in many of them, the thing is if you disclose
the content of that conference, then arguably you have waived your privilege to that content. So it's likely that even
if privilege attached, which I don't think would be the case in this particular phone call, arguably the president has waived any claims of privilege here. So what's the big deal
about this phone call? - [Donald] The people
in the country are angry and there's nothing wrong with saying that you've recalculated. - Well, actually there
could be a lot wrong with saying that you recalculated if you haven't actually recalculated, if you're not allowed to recalculate, if you recalculate for
pre-textual reasons, or if you use the recalculation to change the numbers inappropriately. There's a lot that can be an issue here. So let's start with Georgia state law. The first part of Georgia
Code Section 21-2-562 deals with fraudulent entries, unlawful alteration or
destruction of entries, unlawful removal of documents and neglect or refusal
to deliver documents. It's obviously against Georgia law to falsify documents or
records in connection with an election or to
make any false entries. And then there's Georgia
Code Section 21-2-576, destroying or defacing or
delaying delivery of ballots. Any person who willfully destroys or defaces any ballot or
willfully delays the delivery of any ballots shall be
guilty of a misdemeanor. Then there's Section 45-11-1, offenses involving public records, documents, or other items. It's against Georgia
law for public officials to falsify any record
related to their office. And then there's Section 21-2-597, intentional interference with performance of election duties. Under Georgia law, any person who intentionally
interferes with, hinders or delays or
attempts to interfere with, hinder or delay any other person in the performance of any
act or duty authorized or imposed by this chapter shall
be guilty of a misdemeanor. And that refers to the election duties of election-related officials in Georgia. And then there's Section 21-2-604, good old fashioned criminal solicitation to commit election fraud. And the important thing to note in terms of this solicitation defense which is actually the case
with most solicitation crimes, is that it's not a defense that the person you solicited did not take the bait. And those are just the obvious Georgia state-related election crimes. Then there's a whole swath of federal law related to elections. The Department of Justice
guidance on federal prosecutions for voter fraud states that the following are prosecutable election crimes. Quote, malfeasance by election officials acting under color of law, such as diluting valid
ballots with invalid ones, so-called ballot box stuffing, rendering false vote tabulations, or preventing valid voter
registrations or votes from being given effect in any election, as well as in elections
where federal candidates are on the ballot. Now, 18 U.S.C. Sections 241 and 242, are the civil rights conspiracy statutes. Section 241 states, if two or more persons conspire to injure, oppress, threaten or intimidate
any person in any state in the free exercise or
enjoyment of any right or privilege secured to
him by the Constitution or laws of the United States
or because of his having so exercised the same, they
shall be fined under this title or imprisoned not more
than 10 years, or both. And the next section, 242, makes it a crime for any person acting under color of law, statute
ordinance regulation or custom to willfully deprive
or cause to be deprived from any person those rights, privileges or immunities
secured or protected by the Constitution and the
laws of the United States. That includes depriving people of their right to vote and have
their vote properly counted. And then the other most
likely applicable federal law would be the National
Voter Registration Act, now codified as 52 U.S.C. 2501, which also makes it illegal for election officials to commit fraud, specifically anyone who knowingly and willfully deprives, defrauds or attempts to deprive or defraud 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 under the laws of the state in which
the election is held. So those are the state and federal laws that are most likely to apply
in this particular situation. So the question is, do
they actually apply? Did the president actually violate one of these criminal
election-related statutes? Well, as we've discussed
many times on this channel, often criminality requires
a specific mental state, a mens rea, and this case is no different. Sometimes the same actual
physical conduct can be criminal depending on the particular
mental state that someone had. And the criminal justice system is actually very, very concerned with the intent that someone has. And here, most of the state
and federal election crimes require mental states of either willfulness or intentionality. And those carry very specific meanings in the world of criminal law. Willfulness is generally defined as meaning the prosecutor must prove beyond a reasonable doubt
that the defendant knew that their conduct was
unlawful and intended to do something that the law forbids. That is that they acted with a purpose to disobey or disregard the law. Now, many states define willfulness and intentionality slightly differently. It's a very ambiguous term
within the world of criminal law. That's actually why people have tried to adopt what's called a model penal code, but we'll save that for another day. Now, I looked and I
couldn't find how Georgia defines or construes its
willfulness requirement in the context of these
election law violations. But you will notice that the federal laws also use
the willfulness requirement. And there is some case law with respect to the federal laws here. For President Trump to be convicted under Section 242, for example, a prosecutor would have
to show three elements that he acted under color of
law, that he acted willfully, and that he deprived or
attempted to deprive someone of the rights of the
constitution or federal law. And courts have interpreted Section 242 to impose a specific intent requirement. The prosecutor would need to
show that the president acted with a specific intent to deprive someone of a constitutional right
or with an open defiance or in reckless disregard of
a constitutional requirement. And as always, the criminal justice system looks to the context and
circumstantial evidence to determine someone's mental state, because no one can read minds. And recall that circumstantial
evidence isn't weak, it's often the strongest
evidence that we have. So let's look to the call itself and see what a prosecutor and
a defense attorney would argue in the context of this call
and the general election. Now, arguably President
Trump's greatest exposure is probably under the solicitation laws. President Trump seemingly
asked Brad Raffensperger not to count legal votes. He asked him to find the exact number of votes needed to overturn the result. Just one more than Joe
Biden got would do it. In one portion of the call, President Trump seemingly accuses both Brad Raffensperger
and the General Counsel for the Secretary of State, Ryan Germany, of engaging in criminal conduct. - [Donald] And you're
gonna find that they are, which is totally illegal. It's more illegal for
you than it is for them because you know what they did
and you're not reporting it. That's a criminal offense. And you can't let that happen. That's a big risk to you
and to Ryan, your lawyer. That's a big risk. - A threat that comes from the president of the United States who of course controls
the Department of Justice. He says that it's criminal
and you can't let that happen. It's a risk. It's a big risk to both
Raffensperger and Germany. When the president of the United States says that you're engaging
in criminal conduct, that carries a different kind of weight than when you're just
Joe Schmo on the street. And then right after
that particular section where he's saying that
the Georgia officials have engaged in criminal conduct, he then goes on to say that
he just wants 11,780 votes. - [Donald] You know, I mean, I'm notifying you that
you're letting it happen. So look, all I wanna do is this, I just wanna find 11,780 votes, which is one more than we have because we won the state. - And that number could
be incredibly important because he's not saying he wants all of the fraudulently cast
ballots or that he wants all of the incorrectly cast ballots
to be reversed in his favor. He wants specifically one more vote than Joe Biden won the state by. President Trump in many
different spots says that Joe Biden ostensibly
has won Georgia by 11,779. Thus President Trump wants
just one more than that. And that could go a long way towards establishing the mens rea of the criminality that
he knows that the numbers are false and that he just
wants one single vote more. He doesn't care exactly how many he gets as long as he beats Joe Biden. And then arguably in
almost the next sentence, he says that he doesn't exactly
care how Georgia does it. Call it a mistake, call
it a recalculation, just do it and flip the state. - [Donald] And flipping the
state is a great testament to our country because it's a
testament that they can admit to a mistake or whatever
you wanna call it. If it was a mistake, I don't know. A lot of people think it wasn't a mistake, it was much more criminal than that. - And then President
Trump seemingly goes on to cajole the Georgia officials in speak that literally
sounds like a mobster. - [Donald] So what are
we gonna do here, folks? I only need 11,000 votes. Fellas, I need 11,000
votes. Give me a break. You know, we have that in spades already. - "What are we gonna do,
fellas? Give me a break. We have it in spades already." I mean, he really does seem like he watched a bunch
of 1940s gangster movies. And President Trump just can't even fathom why a Republican official in Georgia wouldn't be trying to
do everything possible to give the election to
a Republican president. - [Donald] Why don't you
wanna find this, Ryan? What's wrong with you? I heard your lawyer is
very difficult actually, but I'm sure you're a good lawyer. You have a nice last name. But I'm just curious why do you keep fighting this thing? It just doesn't make sense. - And then President Trump goes on to say that they need to reexamine
the election results but they need to reexamine it with people that want to find the answers, seemingly implying that
they should use people who were in on the fix and
will actually flip the results. - [Donald] So tell me,
Brad, what are we gonna do? We won the election and it's not fair to take it away from us like this. And it's gonna be very
costly in many ways. And I think you have to say
that you're gonna reexamine it. And you can reexamine it, but reexamine it with people
that wanna find answers, not people that don't wanna find answers. - So assuming that the actual
acts here rise to the level of the various election crimes that we discussed and frankly, getting a Secretary of State to literally change the
votes to turn an outcome probably qualifies for a lot of the things that we previously talked about. A prosecutor would argue
that these statements show that President Trump does have the requisite mental
state for these crimes. And there is a specific
intent to violate the law and engage in criminality. A prosecutor would say President Trump is going after exactly the number of votes that's needed to flip the state, that he's recognizing that the information is against him and that he
doesn't seriously believe that he actually won the state, that he is threatening the officials in charge of the election
results in Georgia. Not only that, but later on in the tapes, he talks about how all the
good things will happen to Raffensperger and Germany if they do flip the state in his favor. So he's offering both carrots and sticks to change the results. And it appears that he's
single-mindedly focused on the outcome rather than the process. On the other hand, a defense attorney for President Trump would
argue based on the context of the call and on the explicit
language of the call itself that President Trump did
not engage in criminality. That the statements that
we just talked about make sense in context. And certainly everyone would agree that President Trump never explicitly said invent fake votes so that
he wins the election. It appears that throughout the call, President Trump has an honest belief, a subjective honest belief that may or may not comport with objective reality, but nonetheless an honest belief that there was fraud in Georgia. - [Donald] The bottom
line is many, many times, the 11,779 margin that
they said we lost by, we had vast, I mean, the
state is in turmoil over this, and I know you would like
to get to the bottom of it. - He seems fixated by it. He seems to believe everything
that the social media or as he calls it, the Trump media. He says he does not watch social media, he watches Trump media, but he appears to believe everything that those sources are saying. - [Donald] And also that
Dominion took out machines. That Dominion is really moving fast to get rid of their machinery. Do you know anything about that? Because that's illegal. - [Ryan] This is Ryan Germany. No, Dominion has not moved any machinery out of Fulton County. We're having an election on Tuesday. - [Donald] Have they moved the inner parts of the machines and replaced
them with other parts? - [Ryan] No. - [Donald] Are you sure, Ryan? - [Ryan] I'm sure, I'm
sure, Mr. President. - It's total nonsense, but he
seems to actually believe it. So in the context of that,
of the Trump news media, and President Trump is looking into ways of addressing the fraud that he honestly believes took place. And yes, President Trump
referred to the number 11,780 which is a very convenient
number for the president. That's a number that would flip Georgia. But really, throughout the call, President Trump is referring to lots of different numbers related
to the claimed election fraud. At some times talking about
300,000 mysterious ballots or quote, massive numbers
far greater than the 11,779. Or he says that accurate numbers would include more than
fifties of thousands. He's convinced that there are far more than the number of votes
necessary for him to win, and he's just concerned
about finding enough. At one point he says he doesn't want to go after Dominion because he doesn't need to, because there are all these other votes that were fraudulently cast
that total far more than 12,000. So therefore they don't even need to get into the Dominion thing. And at the same time,
the president's lawyer, Cleta Mitchell of Foley & Lardner says that what they're trying to get is the data from Georgia, that Georgia for legal
and privacy reasons, has not disclosed a lot of the election-related data to them, so they actually can't check some of these fraud-related
claims and they simply want the data to be
able to make that check, though that may seemingly
be illegal in and of itself. - [Cleta] I think what president's saying and what we've been trying
to do is to say, look, the court is not acting on our petition. They haven't even assigned a judge, but the people of Georgia and the people of America have a right
to know the answers and you have data and records
that we don't have access to. - And then unfortunately
there's the additional problem that a lot of the president's thoughts are completely inchoate. The problem is the
president has brain worms. - Brain worms. - At one point in the call, he
says that he literally thinks that he won every state in the country. - [Donald] Oh, every single state. We won every state, we won every State House in the country. - So when someone's head is
filled with complete nonsense, that actually has a big effect in terms of trying to prove a subjective,
specific intent crime. So a prosecutor would
say that you have to read between the lines, you have to
read the subtext to the text and that just like no mafia don would ever say explicitly
commit the crime itself. It's meant through implication. And that you have to look at the leverage and the pressure that someone is putting on another person to commit a crime. While a defense attorney would say this is just someone that
is extremely concerned about the election who
has honest, if crazy, beliefs about that election and that they're just trying
to explore the legal avenues to come to the outcome that
they believe is the right one. And then finally there is the question of apart from the potential
criminality itself, could this behavior be impeachable, just the implication
of the context itself? And the answer to that
is almost certainly yes. Congress has wide discretion to impeach and the Senate to remove
based on impropriety. And it's hard to believe that even if the phone call itself was not criminal, that based on the context and the implications that the president either knew or should have known that what he was doing was
improper in the context of a democratic republic and
thus it's removable conduct. But it appears that President
Trump finally got his wish. He finally found the election
fraud that he was looking for. And when Susan Collins
said that she thought that President Trump
had learned his lesson from the last perfect phone
call and the last impeachment, it appears that he did learn a lesson that he should just do it again. But on the other hand, it appears that the Democratic member of the Georgia State Election Board has formally asked the
Georgia Secretary of State to open an investigation into
possible criminal violations by President Trump
based on the phone call. So it's anyone's guess as
to what's going to happen to President Trump as a
result of this phone call, both while he's in office and
eventually when he leaves.
I noticed he mentioned Cleta Mitchell’s firm every time he spoke about her...oh boy!
Edit: grammar ofc
cleta is out! That was fast. The video might need a correction now.
I think I need to take a break from work