The FBI has confirmed to Fox News that it has received a letter from Reps. Ted Lieu, D-Calif., and Kathleen Rice, D-N.Y., which calls on Director Christopher Wray to open a criminal investigation into President Trump‘s Jan. 2 phone call with Georgia Secretary of State Brad Raffensperger.
During the call, Trump repeatedly claimed that he won Georgia in November’s presidential election, but that thousands of improperly cast ballots resulted in a victory for President-elect Joe Biden. Trump urged Raffensperger to help him by invalidating enough ballots to award him the victory. Raffensperger said the president’s data was incorrect.
“As members of Congress and former prosecutors, we believe Donald Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes,” the letter said, asking Wray “to open an immediate criminal investigation into the president.”
The FBI declined to provide any further comment on the letter.
The representatives specifically cited two federal statutes and one state statute. The first was a federal law that makes it a crime if someone during a federal election “knowingly and willfully deprives, defrauds or attempts to deprive or defraud” a state’s residents “of a fair and impartially conducted election process” through methods including casting or counting ballots that they know are “materially false, fictitious or fraudulent[.]”
Lieu and Rice claimed that Trump violated this “by threatening him to ‘find 11,780 votes.'” During the call, however, Trump’s statement, “I just want to find 11,780 votes,” was in the context of discussing ballots that he claimed were “corrupt” and should not be counted for Biden, not votes for himself that he wanted fabricated.
Lieu and Rice cite another federal law, however, that says, “[n]o person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote … or willfully fail or refuse to tabulate, count and report such person’s vote.” They claim that by calling for ballots to be invalidated and suggesting to Raffensperger that “there’s nothing wrong with saying … that you’ve recalculated,” Trump was calling on Raffensperger to refuse to count votes, in violation of the statute.
The two Democrats then cited a Georgia statute for criminal solicitation to commit election fraud. That law makes it a crime to request, command or otherwise attempt to get another person to commit an act of election fraud.
Lieu and Rice said Trump violated this statute “by requesting that he ‘find 11,780 votes’ and ‘recalculate’ legitimately cast votes and engage in a number of other fraudulent actions.” They called on Wray to refer the matter to the Georgia attorney general or a local district attorney if he believes Trump violated state law.
“The evidence of election fraud by Mr. Trump is now in broad daylight,” the letter concluded, claiming that the known facts make out the elements of the crimes they described. “Given the more than ample factual predicate, we are making a criminal referral to you to open an investigation into Mr. Trump. Thank you for your attention to this urgent request.”
Fox News has reached out to the White House for comment on the letter.
Former federal prosecutor Andrew McCarthy told Fox News that he does not believe the facts support the offenses Lieu and Rice alleged.
“I really don’t see these statutes having much application to what Trump was doing,” McCarthy said.
What it comes down to, he said, is intent.
“Like most election law statutes, these would require proof beyond a reasonable doubt that an accused acted ‘willfully,'” he said. “This is the most demanding state-of-mind element, requiring proof that the accused knew his conduct was in violation of the law and acted with a bad intent to violate the law. If a person believes that there was fraud and is urging a public official to investigate this possibility, I don’t see how a prosecutor could prove willful misconduct.”
McCarthy also pointed out that Trump had attorneys present during the call, which took place while there is ongoing litigation in Georgia in an election fraud case that Trump brought.
“Consequently, the conversation can be understood as a negotiation between adversary parties to a litigation,” McCarthy added. “In that context, and with his lawyers on the phone with him, it would be very hard to prove that Trump had the intent to commit a crime.”
Raffensperger spoke about the call with ABC‘s “Good Morning America.” When asked if he believes Trump’s request was lawful, he would not say, noting that he is not a lawyer. Raffensperger did say that the Fulton County district attorney was interested in investigating the call.