We are only a week away from the disastrous insurrection attempt by Donald Trump supporters and already some people want to forget the horrors of that day and move on to “healing.” Republicans argue that his second impeachment is punishment enough and for the good of the country, we should move on. But true healing of a wound only comes with a thorough cleansing of the wound. If we have learned nothing else, the wounds to our Democracy run deeper that we could have imagined. And they must be cleansed.
The cleansing process here must be centered around accountability. Those responsible for planting and watering the seeds of insurrection must be held accountable not just through societal censure, but to the fullest extent of the law. Where crimes were committed, accountability not only requires criminal prosecution, it demands it.
As architect and chief propagator of the election fraud hoax, accountability starts with Donald Trump. His lies created the climate for insurrection and placed our Republic in jeopardy. Of course, there was no evidence of widespread voter fraud and there never has been. The lie was specifically conjured to insight his base into an angered frenzy. And it worked. It worked so well that ordinary citizens were willing to take up arms and overthrow our government. He has broken the law in many respects and America has an obligation to see that justice is done. Justice demands the prosecution of Donald Trump.
Reports of reliable sources indicate that the president has been inquiring about self-pardon. The question of whether a president could pardon himself for existing or prospective crimes has never been tested. In any case, presidential pardon power extends only to Federal crimes and offenses. States crimes, like shooting someone in the middle of Fifth Avenue, are crimes that the president could not escape prosecution from.
The separation of State and Federal jurisdiction over Trump’s potential prosecution raises an interesting question. At the heart of the articles of impeachment and the insurrection, an attempted coup is the 'big lie' around which it was galvanized – that election interference in election fraud occurred in such high numbers that Donald Trump was robbed of the presidency. Nothing better illustrates the president’s attempt to make this fake voter fraud real than his January 3rd telephone call to Georgia’s Secretary of State Brad Raffensperger. In that call, Trump pleaded with Raffennsperger to “find” the votes he needed to win the state of Georgia. Trump lost the state by 11,779 votes. If there was any doubt that Trump was looking for a specific favor, that doubt flew out the window when he said, “I just want to find 11,780 votes,” which is exactly what he needed to win.
Georgia law makes it illegal for anyone to “solicit, request, command, importune or otherwise attempt to cause” any person to engage in election fraud. No reasonable person would suggest that Trump was doing anything other than attempting to request a radical and illegal act from the Secretary of State. How does one just find 11,800 votes in a state where there had been numerous recounts? Where would they come from?
Many have argued that because there was no explicit threat by Trump to take action against the Secretary, it’s not clear that a crime was committed. But what is clear is that the president has operated through veiled thuggery for most of his professional life and all of his political life. Trump bears all of the characteristics of a New York City mobster. Mobsters and professional thugs operate through veiled threats. In a veiled threat, the thug tells you what he wants but doesn’t tell you what will happen if you fail to do it. It is implied by the power that the thug wields and the very fact that the thug is making the unseemly request. Veiled threats provide a thug with plausible deniability; the ability to argue that “I didn’t mean what you thought I meant.”
No doubt the words that flowed from Donald Trump’s mouth are evidence of criminal intent, but it is the context in which the statements are made that provide the most damning evidence. His actions simply cannot survive the ‘what, when, where, why and how’ test of criminal intent. The ‘what’ and ‘how”, of course, is the telephone call requesting that the Secretary find additional votes. But here’s where it gets ugly for Donald Trump. The ‘when’ and ‘why’ of this phone call is most troubling. The call occurred on January 3, 2021. The election was held 60 days prior on November 3, 2020. In that 60 day time span there had been an initial vote count, a required recount and at least four lawsuits filed attempting to overturn the results of the election. Those suits set forth the best “legitimate” legal arguments for overturning the election and therefore the only possible chance of overturning Georgia’s results. But none of those suits had a snowballs chance in hell of succeeding and the Trump Campaign knew it. As of January 2nd, not a single shred of credible evidence had been produced to the Court supporting fraud.
With the January 6th date for Congress to count votes quickly approaching and no possible chance for success in the Courts, Trump no doubt grew desperate. In fact, Trump’s voice reeks of desperation. Circumstantial evidence suggests that the phone call was nothing more than a sad and flailing “Hail Mary”; an attempt to use presidential authority to force compliance. Would that call have been made if he believed there was real evidence of voter fraud before the Court? Of course not. This is circumstantial evidence---the type of evidence that jurors convict on every day.
The crime is easily understandable and quite frankly easily provable. The only fact that would prevent prosecution is the fact that Donald Trump is, or soon was, the former President of the United States. That, however, should not give him a pass. Instead, it should provide greater incentive for his prosecution. Prosecutors in Georgia should take heed and move with haste to file charges for election interference.
Trump’s replacement of U.S. Attorney Byung Pak, whom Trump described as a ‘Never Trumper,” as U.S. Attorney for the Northern District of Georgia, suggests that his replacement, Bobby L. Christine, will have no appetite for Federal prosecution. Recent revelations that Georgia Attorney General Chris Carr was the chair of a fundraising group which called Trump supporters and urge them to march on the U. S. Capital, places his allegiance to the unbiased application of the law in doubt. That leaves the responsibility for Georgia election interference squarely in the hands of State prosecutors.
The task of prosecuting Donald Trump for violations of George’s election law may fall on Fulton County’s District Attorney Fani Willis. Willis, a former Chief Magistrate Judge and the newly elected District Attorney, could demonstrate a true commitment to justice by emphasizing through prosecution that no one is above the law. This is the time when someone, some prosecutor must show courage. This is the time for cleansing.
So let the healing begin…..and let it begin in Georgia.
Robert Tarver is the NorthStarNews.com Legal Analyst and a former prosecutor and television media legal commentator now in private practice in New Jersey.
