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Trump call

Then-President Donald Trump, seen speaking on a separate phone call, asked Georgia Secretary of State Brad Raffensperger to "find" enough votes to allow him to overturn the results of the 2020 presidential election. (Photo: Drew Angerer/Getty Images)

Demanding Prosecution, Legal Experts Say This Is the 'Smoking Gun' to Nail Trump

"Trump has so far enjoyed near-impunity. He has gotten away with abuse after abuse... A case centered on the Georgia phone call, however, provides an antidote to that astonishing record."

Brett Wilkins

As a key witness prepared to testify Tuesday before the congressional committee investigating the January 6, 2021 attack on the United States Capitol, a growing number of U.S. legal experts argued that one of Donald Trump's recorded phone calls offers ample grounds for the former president's prosecution.

"The tape should provide a simple case for criminal prosecutors to bring against Trump after the hearings."

Writing for MSNBC, Democracy 21 founder and president Fred Wertheimer and Brookings Institute senior fellow Norman Eisen assert that "conclusive proof" of Trump's "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 pair argue. Raffensperger is set to testify before the bipartisan House panel Tuesday afternoon.

"Trump has so far enjoyed near-impunity. He has gotten away with abuse after abuse," Wertheimer and Eisen continue. "A case centered on the Georgia phone call, however, provides an antidote to that astonishing record."

"The tape should provide a simple case for criminal prosecutors to bring against Trump after the hearings," they contend. "U.S. District Judge David Carter already has found that Trump and his co-conspirators likely committed federal crimes... 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.'"

They write:

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 January 2 phone call Trump made to Raffensperger stands out as a smoking gun. Trump has no legal defense for this action...

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," Wertheimer and Eisen add, "and did so with no legal basis and no facts to justify his claims."

"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," the pair note. "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."

Citing last week's testimony by former federal judge Michael Luttig—who called Trump and his allies a "clear and present danger" to U.S. democracy, Laurence H. Tribe, Phillip Allen Lacovara, and Dennis Aftergut argue in a Los Angeles Times opinion piece that "this historic phrase generates an extraordinary constitutional power of government to act—and a duty to do so."

"Luttig's verdict should be understood as a plea for Attorney General Merrick Garland to proceed toward charging Trump with federal crimes that the public record now amply establishes," the trio writes. "Only then will this nation be able to move forward from the ongoing insurrection."

"Beyond the avalanche of documents and testimony pointing to Trump's guilt and the principle that no one is above the law, there is an additional reason to indict Trump for his multi-faceted conspiracy in 2020 to override the vote," the experts state. "Upon a conviction for inciting insurrection, or being an accessory to insurrection, Trump would be subject to disqualification from acquiring federal office."

The jurists continue:

There is ample evidence that Trump's objective was the insurrection's success. Among that evidence was his three-hour delay in calling on the attackers to go home and his vengeful tweet demeaning Vice President Mike Pence after Trump knew that the savage invasion of the U.S. Capitol had begun. That was "pouring gasoline on the fire," testified former deputy White House press secretary Sarah Matthews.

Even without a direct charge of insurrection, allegations of such insurrectionist activities in an indictment for conspiring to defraud the United States or to obstruct an official proceeding or for seditious conspiracy might suffice for 14th Amendment disqualification if Trump were convicted.

"Holding Trump accountable—and disqualifying him from future office—would not be a partisan act, but one needed to preserve the republic," Tribe, Lacovara, and Aftergut stress.

"Holding Trump accountable—and disqualifying him from future office—would not be a partisan act, but one needed to preserve the republic."

Warning that Trump has floated the possibility of pardoning all January 6th insurrectionists if he is reelected president, the authors argue that "deterrence of future violence depends on judicially imposed sanctions."

"Trump would remove them, signaling that violent extremism in defense of Trump is no vice," they write. "If he returns to the White House, he will install his people in the Justice Department and turn the machinery of prosecution against his enemies and toward protecting his friends and his schemes."

The scholars part with an ominous warning: "And should Trump get an encore, look to pre-World War II Germany for a mirror. A failed coup in 1923 taught Hitler a better route to dictatorship nine years later. Those who repeat history are doomed to learn it. The hard way."

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