The now-famous recording of President Trump’s Jan. 2 phone call with Georgia Secretary of State Brad Raffensperger suggests the president was attempting to interfere with that state’s vote tally from the November election.
In a Jan. 4 interview on NPR’s “Morning Edition” program, UB School of Law Prof. Kim Wehle described her reaction to the conversation from various legal perspectives.
Asked what is a proper legal term for what the president did, Wehle replied, “Well, potentially, soliciting election fraud. As we’ve heard from the Republicans now for months, voter fraud, election fraud, is a crime both at the federal and the state level, and it’s also a crime to request, solicit or ask someone else to, say, falsify returns or falsify reports of votes. And arguably, that’s what we heard on the call.”
Wehle contradicted several claims Trump made in the phone call. “Remember; this comes down to a showing of intent. He said, ‘I won by 400,000 votes in Georgia.’ Georgia was certified three different times. He lost by about 12,000 votes. So I guess he could make the argument, ‘I didn’t have the intent; I really believed that I won Georgia.’
“But then the question is almost a 25th Amendment one. Is he so, sort of, untethered from facts and reality that he’s not fit even for the remaining days of office? It seems like he can’t have it both ways. But whether this is prosecutable is a different question from whether it’s antithetical to the rule of law and the Constitution and democracy itself. And I would say clearly it is. It’s very disturbing.”
On the issue of whether Trump’s lawyer, Cleta Mitchell, committed an ethical breach by repeating her client’s false statements during the call, Wehle called the answer “a little bit delicate.”
“It is unethical for a lawyer to assist a client in some kind of fraudulent or criminal activity. It’s not unethical to advise the implications of a certain course of action and say, listen; that’s a problem that’s going to get you in trouble. But once it becomes clear to a lawyer that your client is asking you to help them engage in something that’s illegal, then it’s ethically the obligation of the lawyer to withdraw from that representation,” Wehle said.
Asked whether there is sufficient evidence of wrongdoing by the president for an investigation by state or federal authorities, Wehle said, “I’d leave that to the prosecutors. I think it’s really a political question here. I think this certainly is impeachable. And we have to remember what’s going on here. This is a plea across the board to take democracy away from the people and give it to politicians. We should have that debate, but name it for what it is.”