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Last week, Alan Dershowitz pitched the dingbat theory that Trump calling Georgia election officials asking them to find more votes was “exculpatory” actually because he chose not to use words like “concoct” or “manufacture.” Jonathan Turley is sort of taking the opposite approach, spinning the call as a completely normal recount request despite never using the word “recount” in an ex parte conversation.
This is a slight update to Tur-looney’s original take, where he tried to cast the Georgia charges as criminalizing free speech despite knowing damn well that “overt acts” can be and often are perfectly legal on their own but can be used to satisfy the requirement that defendants took affirmative steps to manifest their criminal conspiracy. After the Washington Post took him to task for his misleading commentary, the professor has doubled down, lamenting that the criminal charges against Trump would make all election challenges criminal.
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 machines supposedly changing the outcome.
Again, the statements are not what’s allegedly criminal. Conspiring to certify alternate electors in violation of state law is criminal and leaning on the Georgia Secretary of State’s office to drag out the certification process so they could accomplish that goal is just an overt act in furtherance of that conspiracy. Hillary Clinton can say Trump taking office with millions fewer votes all she wants because she didn’t say it — as far as anyone can tell — as part of a bid to get Pennsylvania to certify phony electors.
Stacey Abrams may not have conceded her election… but concessions aren’t magic. The losing candidate doesn’t need to concede for an election to end. She cited voter suppression efforts at work in the state, but she also didn’t try to move into the governor’s mansion either.
But the Marc Elias example is the most telling. Elias filed a lawsuit pursuant to state election laws asking the judicial process to resolve a dispute. Trump and his team had a private phone call with Georgia officials asking them to unilaterally “find” more votes.
That’s more like calling the judge at home and asking them to let you off. Or, as the case may be, losing the legal challenge and then calling election officials and telling them to find more votes anyway.
Turley knows this. But he gets more attention by pretending he doesn’t.
Georgia indictment of Trump is the same flawed product in a different package [The Hill]
Earlier: Dershowitz Explains That Trump Demand To ‘Find 11,780 Votes’ Was Totally ‘Exculpatory’
Jonathan Turley Brings Flair For Blatantly Misstating Basic Legal Concepts To The Trump Indictment
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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