The processing of former President Donald Trump in the Fulton County jail followed a familiar pattern. First came the mugshot, then the merchandise. Both the left and the right immediately started selling mugs and t-shirts featuring the scowling image of Inmate P01135809.
Snap, scowl, sell and spin. Our legal and political dialogue has now been reduced to the substance of a Benetton catalogue.
Politicians and pundits continue to assure the public that this indictment is not just the criminalization of political speech or election challenges. Much of that spin returns to a familiar point of reference: Trump's call to Georgia officials. Indeed, I have been criticized for even suggesting that "the call" is not evidence of a crime, even though I continue to support the actions of the Georgia officials who resisted Trump's requests, including Secretary of State Brad Raffensperger.
I previously wrote that the strength of any Georgia indictment could be measured on the weight given to "the call," a highly debatable claim that Trump expressly called for fraud. But my doubts about this call (which Fulton County Fani Willis cited as the impetus of her investigation) do not stem from any refusal to accept that Trump could be charged or convicted.
When the Mar-a-Lago indictment came down, I was one of the first to say that I considered it a strong case. I have since noted that the case seems to be strengthening with time. But that is not the case in Georgia.
Although there are strong criminal allegations against some of the defendants on individual acts, the effort to prosecute Trump is based on loose alleged conspiracies and little new evidence involving his own actions.
For that reason, it is telling that pundits have again made "the call" the focus of this sprawling racketeering theory.
First, a brief reminder of what "the call" is. This was not some back-room, smoke-filled political wheel-and-deal call. It was similar to a settlement discussion between largely antagonistic figures and their opposing teams. State officials and the Trump team were seeing if they could resolve their differences without further litigation. The Trump team wanted a new statewide recount. Trump had lost the state by less than 12,000 votes and was making the case that he could still show that he had won the state. He stated, “I just want to find 11,780 votes, which is one more than we have because we won the state.”
If you are going to argue for another recount or continued investigation, the obvious argument is that it would not take statistically many votes to make a difference.
I have long disagreed with Trump over his claim of systemic voting fraud. I criticized Trump's Jan. 6 speech while he was giving it. I supported Vice President Mike Pence and his certification of the election of Joe Biden. I have also regularly criticized Trump when I felt that such criticism was warranted. This does not change my view of whether the call is compelling evidence of a crime.
When the Washington Post first reported this call, I posted a critical tweet based on its initial, erroneous account that Trump had ordered Georgia officials to just "find" the needed votes. I noted that such a demand would be breathtaking and further noted that, even if they did so, it would not stop Biden from winning the presidency.
But a few hours later, the actual transcript of the call was released, showing a strikingly different context for the "find" comment than the Post had reported. Trump was clearly referring to his objective in finding votes and the threshold he needed to meet. That is a predictable argument for a candidate in pushing for a continued investigation.
The Post also ran a misleading story on a separate, related call that left the same false impression. By the initial account, Trump had supposedly told investigator Frances Watson to “find the fraud” and promised that she would be “a national hero.” In fact, Trump had stated that, if the officials did a neutral investigation, “you’re going to find things” including “dishonesty." The Post had to issue a correction at the top of this second story after the Wall Street Journal found a recording of the call. "The recording revealed that The Post misquoted Trump’s comments on the call, based on information provided by a source," the paper acknowledged.
Phillip Bump's recent Washington Post column continues to cite the paper's original, skewed account of that call in order to criticize my commentary on it. Yet even in doing so, Bump inadvertently demonstrates the danger of using this call to prosecute Trump.
He maintains that the call was criminal because Trump had already been assured that another recount would not produce the votes and that there was no evidence of widespread fraud. "Trump’s entreaties" are deemed criminal because he had refused to accept "the truth" over the arguments of his advisers. Bump argues further that it does not matter if Trump actually intended to engage in fraud in the call, because the meeting was part of a general pattern of spreading “false statements and writings."
There is no self-awareness at all in Bump's argument. Bump has repeatedly spread false stories and then refused to accept the falsity of his own earlier claims, even after most of the media have admitted the errors. But more importantly, the standard that Bump sets forth for prosecution — imputing criminality to a politician's refusal to accept inconvenient facts — could just as easily be used to prosecute any number of others, such as Rep. Jamie Raskin (D-Md.), who baselessly sought to block certification of Trump's 2016 victory by disenfranchising the voters of Florida.
Was Hillary Clinton guilty of criminal "false statements" when she claimed that her defeat was the result of a "stolen" election and called Trump an "illegitimate president"? How about Stacey Abrams in Georgia, who refused to accept her own defeat for governor in 2018? Then there are Democratic lawyers such as Marc Elias, who filed challenges to overturn a New York election of a Republican on the basis of a conspiracy theory about machines changing the outcome.
Mediaite has called "crazy" any comparison between what Trump did and Democrats challenging prior certifications, because "by the time Trump unsuccessfully leaned on" Raffensperger, recounts had already been carried out. He must have known that it was false, the argument goes, and as I (and many others) stated at the time, a further investigation was unlikely to produce enough votes. However, there was never any credible evidence to support Democratic challenges such as those brought by Raskin and others in 2016. Nor was there ever any evidence that that election was "stolen" as Clinton claimed, nor that Abrams was robbed.
Critics have long denounced Trump as a megalomaniac who could not accept that he lost. Ironically, their criticism could now prove a defense for Trump. There is a vast difference between making unfounded election claims and committing a crime.
Just as Trump was blind to the realities of the election, these prosecutors and pundits are blind to the implications of this indictment.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
