*Episode published on 2/17/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig.

Welcome back to Third Degree everybody. Impeachment is over, but we have plenty more to cover. Now, Fulton County District Attorney Fani Willis down in Atlanta, Georgia has announced that her office is investigating efforts by Donald Trump and potentially others to interfere with the 2020 presidential election in Georgia for potential criminal violations.

Fani Willis:

This is a very important matter as you’ve already highlighted. And so, yes, the investigation seems that it will go past just this one phone call that we’ve discussed and that you played for your viewers.

Elie Honig:

Two things up front. First of all, good. Good that the DA is taking a look. Look, it’s not an easy thing to investigate Donald Trump, nevermind perhaps to charge him. He’s an enormously powerful person. Even as a private citizen, he has a massive political following. A recent poll put him over 50% out of this large pool of Republican primary candidates for 2024. He’s wealthy, and he fights dirty. You know he will come after you.

So a lot of prosecutors are going to have to make the same decision that DA Willis has made. And honestly, it takes guts even to open an investigation. But second, the DA should not be out there doing a media tour. She appeared on MSNBC. She did an interview with the New York Times. It’s poor form. Let’s start with that. It’s not a good look for any prosecutor. It’s actually prohibited at the Department of Justice to make an announcement about a pending investigation. It’s also by the way, not helpful to her own investigation. It even could open up a line of defense if she ever does end up charging Donald Trump. Now, we’ll talk more about this in an upcoming episode, but I wanted to flag that now.

So what could the charges be here? This is not your typical case involving an obvious well-known crime like robbery or drug trafficking or bribery. In fact, this crime doesn’t come up much at all, thankfully. Under Georgia law, it is a crime to solicit, which simply means to ask somebody to commit election fraud. And that includes willfully tampering with votes or the certification. That word willfully is important here. In essence, it means prosecutors have to prove, and prosecutors always have to prove everything beyond a reasonable doubt, prosecutors have to prove that Donald Trump knew he was acting criminally. In other words, that he knew he was asking people to count ballots that were not actually cast for him.

So in an odd way, Trump’s best defense here, if he ever is charged, is that he genuinely did believe he won Georgia, and that all he really wanted was a full and fair recount and let the chips fall as they may. Now look, that’s going to be a tough putt given the evidence, but it’s a line of defense. So what could this investigation look like? What kinds of evidence could there be and how strong might the charges be? Well, let’s break it down.

First, the pillar of this case is the December 23rd phone call that Donald Trump made to Georgia Secretary of State, Brad Raffensperger. We’ve all heard this phone call because it ended up getting recorded and played on all the news channel. But here’s what happened. About seven weeks after election day, by this point, Donald Trump and his team have lost essentially every court case and it’s over to all but the most diluted and the most fanatic Trump worshipers, Donald Trump places this call down to the Georgia Secretary of State.

It turns out this is right in the midst of a prolonged effort by Trump and his most fervent loyalists to just basically say, “Screw it at this point. We’re just going to use brute force and steal this thing.” So Trump calls Raffensperger. Now Raffensperger got a call a few weeks prior from Senator Lindsey Graham. We’ll talk more about him in a second. And Raffensperger didn’t like where Graham was going.

So somebody on Raffensperger’s end decided that when Trump called, the little alarm bell went off and they said, “We better record this.” It’s about an hour long conversation. We’ve all heard it. And in the conversation, it’s fascinating, because Donald Trump pulls out every tool of bullying and manipulation to try to get Raffensperger to throw the election to him, flattery, anger, guilt, threats.

Donald Trump:

The people of Georgia are angry, the people of the country are angry, and there’s nothing wrong with saying that you’ve recalculated.

Brad Rappensperger:

Well, Mr. President, the challenge that you have is the data you have is wrong.

Elie Honig:

If anything, Donald Trump is miffed. He’s confused that Raffensperger won’t go along with him. His tone is almost like, hey, we’re both Republicans. We’re on the same team. But Raffensperger, to his credit, is not having it.

Donald Trump:

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.

Elie Honig:

The key word in this whole recorded conversation is the word find. Donald Trump says, “I just want to find 11,780 votes.” That doesn’t sound like, hey, look, I think I legitimately win. I just want to make sure you count them all and make sure you get it right, whatever the outcome. It sounds like, well, find.

And by the way, how many? That number 11,780, that’s exactly enough for Donald Trump to win by one vote, which would necessarily mean that Trump only wants Raffensperger to find votes that are for Donald Trump, not the other ones, not any that might be for Biden. He wants 11,780 votes, but only Trump votes. That to me, is hard to square with this idea of it was innocent, or he truly believed that he won.

Number two, the subpoenas will be flying. A subpoena you probably know is simply a command that somebody must produce evidence or give testimony. And here I think we’re going to see some subpoenas to some pretty big names. It goes beyond Donald Trump and Raffensperger. First of all, Lindsey Graham. By the way, he’s a senator from a different state. He’s the senator for South Carolina. Yet he decides that he’s going to call over to the Georgia Secretary of State, Brad Raffensperger and maybe put the arm on him.

There’s competing accounts of what was said here. This call was not recorded. According to Raffensperger, the gist of Lindsey Graham’s call was, hey, is there any way you could throw out mail-in ballots? Of course, only for certain counties. Now, Lindsey Graham denies that there was any improper suggestion here. He says he was just calling for sort of benign purposes, but guess what, Lindsey Graham? That’s what subpoenas are for. That’s what testimony is for. So you likely will receive a subpoena, and if so, then you’ll have a chance to tell your story under oath.

Then you got Georgia Governor, Brian Kemp. Donald Trump also called Brian Kemp and asked him to consider calling a special session of the Georgia’s legislature to overturn the election result. Again, can you imagine if Kemp went along with this? But again, like Raffensperger, Kemp, also a Republican, was not having this. And then Georgia Attorney General Chris Carr, and Donald Trump asked him, “Hey, would you mind sitting out this legal challenge that we’re bringing to overturn the election result?” And again, the AG Chris Carr wanted no part of that.

I’m really not sure what’s wilder here, that Donald Trump spent this much time begging state officials in Georgia to go along with this madness or that Donald Trump actually thought that they’d do it, that they’d go along with this, that this would somehow work. It’s so far fetched when you actually look at it and look at the things he was asking these officials to do. All of these folks will likely be getting subpoenas as well. They’ll have a chance to testify in court or in a grand jury.

And then third, Rudy, Rudy, Rudy. I mean, it wouldn’t be a full Donald Trump scandal if Rudy Giuliani was not right in the middle of it. By the way, there’s an argument that other than Donald Trump himself, Rudy is the single worst, I guess, influence on Donald Trump out of any other person in the world. You know how when you’re a kid and your parents say, “Stay away from that kid. I don’t like him. He’s a bad influence. You always seem to do bad things when he’s around?” Rudy is a terrible influence on Donald Trump.

Now, Rudy’s job here was essentially to lie very loudly into as many microphones as he could. He did a mini tour of Georgia claiming that there was massive ballot fraud, that 10,000 plus dead people had voted, that there were conspiracies. And to basically just yell it over and over again. The problem for Rudy is you can say pretty much whatever you want when you’re in the parking lot of the Four Seasons Landscaping. The problem for Rudy though, is he said these things in front of the Georgia state Senate and the Georgia state Legislature.

Rudy Giuliani:

You had 10,315 people that we can determine from obituaries were dead when they voted. That’s pretty tough to do, to vote when you’re dead. So right away, that number you submitted it to Washington is a lie. It’s not true. It’s false.

Elie Honig:

As you might imagine, it is a crime to lie to the Senate or the Legislature in Georgia or in any state. And so, the bottom line here is really similar to Donald Trump. Did Rudy actually believe this stuff? Could he have really believed it? Everybody from DOJ, the Attorney General, DHS, dozens of courts around the country outright denied it. There’s zero evidence of this stuff Rudy was saying. Georgia had already certified its election and had found nothing like what Rudy claimed.

And I just have to say this. Rudy Giuliani, you probably know, was the US Attorney for the Southern District of New York back in the ’80s, decades before I arrived. And we used to have this wall of portraits. They still do have this wall of portraits up there showing every single US Attorney, going back to the late 1700s when the SDNY was founded, and Rudy’s portrait was up there.

And I will tell you, when I started at the SDNY back in 2004, Rudy was a deeply respected figure. He was controversial. He was loud. He was boisterous. We all knew that, but it was not long after 9/11 he was seen as a very effective, aggressive US Attorney. And he was really somebody who we held up with pride.

Well, that is all changed. And I would love to be nice here or charitable and say I’m sort of saddened by what’s happened to Rudy, but it’s more than that. I’m disgusted by what’s happened to Rudy. He’s become an embarrassment. He’s become a disgrace. He has no regard for truth or the law. He’s lucky he’s gotten away with this much so far. We’ll see if his luck continues.

So thank you for joining us here on Third Degree. We’ve got another episode coming on Friday. We have a very cool format twist that I’m really looking forward to introducing, and I think you’re really going to enjoy. We’ll talk to you then.

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.