In 2021, a conversation between President Trump and Georgia’s Secretary of State became public when the GOP Secretary of State released a transcript of the phone call. It raised a lot of questions about whether or not there was a crime committed on the call and whether or not there could be a prosecution following the phone call.

Criminal Solicitation to Commit Election Fraud

O.C.G.A. 21-2-604 describes criminalized solicitation to commit election fraud. There are, however, two distinct election fraud “degrees” in Georgia and the punishments for those are different.

Election Fraud in the First Degree

A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with the intent that another person engages in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.

What do all these words mean?

There are few confusing phrases in that code section so let’s look at what of a couple of those words and phrases mean.

  • Solicit – “Ask someone for something.”
  • “with the intent that another person engages in conduct” – This means that the suspect/defendant must be acting specifically with the purpose of getting someone another person to engage in certain conduct. The certain conduct in this situation is conduct that “constitut(es) a felony under this article.
  • “under this article” – under this article, in this context, means that the suspect/defendant asks someone to engage in conduct that’s a felony Under Title 21 Chapter 2 Article 15 of the Official Code of Georgia. Article 15 is titled “Miscellaneous Offenses” and some of those felonies are:
  • False Registration, O.C.G.A. 21-2-561
  • Fraudulent Entries; Unlawful Alteration or Destruction of Entries; Unlawful Removal of Documents. O.C.G.A. 21-2-562(a)
  • Improper Signing or Alteration of Nomination Petitions or Affidavits. O.C.G.A. 21-2-563
  • Willful Destruction, fraudulent filing, or suspension of nomination materials. O.C.G.A. 21-2-564
  • Interference with Primaries and Elections Generally O.C.G.A. 21-2-566
  • Intimidation of Electors O.C.G.A. 21-2-567
  • among many others.

How are These Crimes Punished

Crimes under this article can be punished as misdemeanors or felonies and many carry fines of up to $10,000.

Could the President be Prosecuted?

I believe that there is a scenario where the President may be indicted. There is a new District Attorney in Fulton County who has a track record of cracking down on public corruption (she led the prosecution of those involved in the Atlanta Public School Cheating Scandal) and has made no bones about the conduct of former Fulton County DA Paul Howard.

That track record combined with the fact that the bar for an indictment in Georgia is very low, and I don’t think it is out of the question (whether it’s right or not) that the President could face an investigation and possible indictment in Fulton County. By no means does that mean that he is actually guilty of a crime and the President, like all of us, enjoys the presumption of innocence and he remains that way unless it is proven otherwise beyond a reasonable doubt.

That presumption of innocence is powerful, and it’s not less important when politics are involved. We are talking about people’s liberty here.

J. Ryan Brown Law, LLC

J. Ryan Brown Law, LLC