On Saturday, January 2d 2021 President Trump (along with others) participated in a conference call with Georgia Secretary of State Brad Raffensperger. During this call the President of the United States corruptly pressured Raffensperger to “find” the mere 12,000 votes (or so) that Trump needed to win the state. In the course of this discussion, the President of the United States, the man Constitutionally charged with enforcing the law of the United States, the man who appoints the leadership of the United States Department of Justice, threatened criminal prosecution against Raffensperger (and his attorney) if he failed to do as demanded. Trump said:
“The ballots are corrupt. And you are going to find that they are — which is totally illegal — it is 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, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based on what I’ve heard. And they are removing machinery, and they’re moving it as fast as they can, both of which are criminal finds. And you can’t let it happen, and you are letting it happen. You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.”
If this sounds close to extortion, that’s because it is. Threatening another with criminal prosecution for your own gain is extortion. See e.g. Black’s Law Dictionary defining extortion as to “accuse anyone of criminal offense” in order to compel them to “take or withhold action as an official.”
I was a little reluctant to push this theory because the classic example is a threat of criminal referral or prosecution to gain advantage in settlement negotiations for a civil case. One need only look to Michael Avenatti’s criminal conviction for extortion when he threatened a criminal referral against Nike to gain advantage in negotiations for a civil case.
I was unaware of an underlying civil case that would make this rule applicable. Fortunately, the President’s attorneys came to my rescue stating they planned to sue Raffensperger for releasing the audio because the discussions were legally confidential discussions to an existing civil case. I would like to thank Mr. David Shafer, President of the Georgia GOP for these very helpful tweets.
By admitting, and filing in court effective stipulations, that the discussions were related pending civil litigation Mr. Shafer makes clear that Trump’s threat of criminal prosecution against Raffensperger and his attorney were to gain advantage in that civil litigation. It’s right in the same paragraph, for Raffensperger to avoid this criminal risk “All I want to do is this. I just want to find 11,780 votes.”
Most cases dealing with this are similar to Avenatti’s. They involve an attorney, or client, threatening to inform the police of criminal conduct to gain advantage in civil litigation. Trump’s is worse because Trump is the police. He is Constitutionally charged with enforcing the laws of the nation and he effectively controls the United States Department of Justice. Avenatti could only threaten to tell the police and then see what the police do. Trump could actually directly act to make the prosecution of Raffensperger and his attorney happen.
Alas, Mr. Shafer’s lawsuit is also doomed to failure for the following reasons.
- Georgia, Washington D.C. and the Federal government are all “one party” jurisdictions for recording calls. So long as one party (e.g. the party making the recording) consents to the recording it is legal.
- Any privilege is waived by the crime/fraud exception. Trump committed the crime of extortion in the call thereby eliminating any privilege of confidentiality as against the public interest. The public has a greater interest in knowing the President committed felonies than in protecting the confidentiality of discussions that commit such felonies.
- And best of all, Trump waived any claim of confidentiality by himself first tweeting his own spin on the call. Trump doesn’t get to present his own version of the call to the public and simultaneously claim that presenting proof that version is a distortion is confidential.
We watched Trump extort a foreign leader to gain advantage in his own reelection and the Republican Senate gave him a pass. Now Trump threatens criminal prosecution against public officials who don’t throw the election in his favor. Unless we are truly a banana republic, that is an impeachable offense.