Cindy Rodriguez: Hi, everyone, I'm Cindy Rodriguez, an investigative reporter with WNYC news, in for Tanzina Vega this week. This is The Takeaway.
Pres. Donald Trump: What are we going to do here, folks? I only need 11,000 votes, fellas. I need 11,000 votes; give me a break.
Cindy: Today, we start with the tapes heard round the world. Yes, we're talking about the remarkable and, frankly, unprecedented Saturday phone call between President Trump and Georgia’s Secretary of State, Brad Raffensperger. In the audio excerpts which were obtained and published by The Washington Post, Trump essentially demands that Raffensperger overturn the state's election results and hand him Georgia’s 16 electoral votes. President-Elect Joe Biden solidly won the once-red state by almost 12,000 votes, which were then certified and confirmed via several recounts.
Pres. Trump: Look, all I want to do is this, I just want to find 11,780 votes which is one more than we have.
Cindy: Trump listed dozens of debunked conspiracy theories while pressuring Raffensperger to change the results of the presidential election. Raffensperger repeatedly rejects Trump's baseless allegations while defending his state's electoral process.
Brad Raffensperger: Well, Mr. President the challenge that you have is the data you have is wrong.
Cindy: At one point, Trump even lobbed vague legal threats at Raffensperger and his office's General Counsel, Ryan Germany for refusing to give in.
Pres. Trump: You know what they did and you're not reporting it. That's a criminal offense, and you can't let that happen. That's a big risk to you and to Ryan, your lawyer. That's a big risk.
Cindy: Several of Trumps key allies were also on the call, including his Chief of Staff, Mark Meadows who urged Georgia officials to find a path to overturn the results, “The spirit of cooperation and compromises, there’s something that we can at least have a discussion to look at some of these allegations to find a path forward that's less litigious?” These were just a few excerpts from the striking exchange. The full audio is available on The Washington Post website and is definitely worth a listen. Let's not forget that this call, while shocking, is just the latest attempt by Trump and his supporters to subvert November's election results.
That effort will continue on Wednesday when at least 11 Republican senators have said they would dispute Biden's win when Congress formally meets to count and validate all 538 electoral votes in a joint session.
Pres. Trump: I know this phone call’s going nowhere other than-- Look, ultimately, I win, okay?
Cindy: For more on the legal questions raised by President Trump's weekend call, let's turn now to Ned Foley, Director of the Election Law program at Ohio State University and the author of several books on US elections. Ned, thanks so much for being here.
Ned Foley: Good to be with you.
Cindy: Ned, I want to start with the actual language in President Trump's call. Can you talk a little bit about the specifics that stand out to you?
Ned: Well, the fact that he's asking for just one more vote to make him the winner in Georgia was what has jumped out at me. Because that's what seems to me most clearly him asking for falsification of the election returns. He's not asking the Secretary of State just to make it right, whatever the right number is. He's asking for the Secretary of State to manufacturer to fabricate an incorrect number as long as it makes him the winner. That's the most disturbing aspect to me, and it relates to this-
Cindy: It's not that direct, though, right? It's sort of implied?
Ned: Yes. It's veiled. Obviously, we could be talking about this in very analytical ways about whether this would be an indictable crime under Georgia law or federal law. In my own view, that's not the best way for our country to be thinking about this, at this moment. We have to really heal American democracy, which is struggling right now. This is the week of-- on Wednesday, when Congress is going to confirm the results, but we're going to have Republicans in the Senate and the House challenge the outcome.
I think this call and the tape of it was released in the context of an overall crisis moment, frankly, in American democracy. Maybe it's because I come at this as an election law professor but to me, it's like how do we get to the other side with American democracy intact and in a good shape, is the question. This is a particularly disturbing bit of news that's relevant to that. That's why I'm looking at it through the lens of protecting our country. Not just, “Is this an indictable criminal offense?”
Cindy: You're saying it's not important to you to look at federal law or state law to see if he violated either of those? You believe-
Ned: Well, I wouldn't say not completely unimportant, I would say that’s secondary. In other words, one of the concepts that's come up in the last 24 hours is this idea of censure in Congress. Which would be a formal vote to officially condemn, or rebuke the President for this behavior. I think that's something to look at. Frankly, I think the most important thing to have happen is for the Republican Party, as an institution to disown Trump.
He wants to run again in 2024-- he already suggested that-- and there are people who have come out and said that they would support him. That's the real danger to the country going forward, the idea that he could be a tenable political candidate even after this. We're talking about this week confirming that he lost the election, and he's trying to deny that he lost the election, and is he delusional in that regard?
His denial of reality is so bizarre. It does raise, I think, mental health questions, to be quite honest. But he is also the leader of one of the two major parties in the American political system. There's talk that he's going to continue to be a leader even after he leaves office. Regardless of any of our own political views or political affiliations, American democracy only works if both major political parties play by the rules and believe in the spirit of the rules.
Cindy: Are there any historical parallels to point to that could help us understand the legal questions that are raised here or anything else, for that matter?
Ned: Frankly, I think the most relevant historical precedent is the McCarthy era, McCarthyism but, see, it didn't involve elections. The Red Scare was McCarthy saying, “I've got the name of 200 communists in the State Department,” which he never produced. He was a demagogue and charismatic in the way that Trump was. The army hearings, which were finally McCarthy's downfall, came four years later. The country was in the grips of the demagogue and the alternative facts and the alternative reality. Political scientists and historians call it the paranoid style of American politics, that the country kind of gets gripped in this paranoia.
There were other episodes in the 19th century but never affecting vote tallies, and results of elections. I think we're actually living through this unique moment in American history, which one could call the election version of McCarthyism, or electoral McCarthyism. It's particularly dangerous, and the goal is how do we break that? The Republican Party needed to get beyond McCarthyism as well as the nation. Because you had Eisenhower as President, and you had Robert Taft, the leader of the Senate at the time. They didn't like McCarthy. They knew he was lying, but he was too powerful because of being a demagogue. He had his connection with his base, and that's what President Trump has.
That's the grip that Trump has holds over people like Senator Cruz and Senator Hawley. All Americans, even if they're not members of the Republican Party, should want a healthy Republican Party. Because, again, the voters as a whole choose between the two major competing parties every four years, who they want to have take a turn. The problem here and what the phone call is about is President Trump's complete denial of reality and refusal to accept defeat, and trying to get the Secretary of State-- as you say, maybe it's suggestive language as opposed to outright explicitly, but it's the suggestion is there that he's wanting a fabrication of the returns.
Cindy: Ned, you predicted that this was going to be a wild rollercoaster ride after Election Day. Were you expecting something like this?
Ned: Well, not to this degree or with these details that the concern that I had watching President Trump respond to the midterms in 2018 where he basically said, “Don't count votes after election night in the Florida governor's race, in the Florida Senate race,” made me worried that he might do the same thing in his own re-election
effort, which is what happened. The part that I had been worried about and started to materialize shortly after November 3rd was his initial denialism and saying, “I've won,” when in fact, he hadn't won and him saying that, “Don't count any of the absentee ballots,” that were entitled to be counted but they would be counted late.
What I didn't expect was that it would be taken quite up to-- here we are, already in early January. I thought that he might gain some traction in terms of the public misunderstanding the process as a result of him being president and fomenting distrust, if it had been very close in a single state. What's disturbing to me is that he lost decisively in many states, when it wasn't that narrow. Some of these states were 12,000 votes, 10,000 votes, but it wasn't 1000 votes or 2000 votes. Yet, because he's the president, because he has his following, according to public opinion polls, he's got millions of his own voters believing the same inaccuracies that he believes in.
His voters think that it was stolen from him. Not true. No evidence of that, but that's really dangerous.
Tanzina: Ned, what's your sense about how something like this could affect the runoffs in Georgia tomorrow?
Ned: Well, obviously we've got such polarization in American politics, so the two parties really want to win Georgia. I think we're likely to have inconclusive results, again, if the race is as close as predicted. We may get these allegations and counter allegations, maybe even from both sides, although hard to know, in the cloud of uncertainty. How will we get to closure with respect to these two Senate races where the losing side accepts defeat and doesn't say, “Robbery”, or, “Theft.” This is going to be a challenge for elections going forward, including the Georgia runoffs.
Tanzina: There is a lot more drama to come is what you're saying.
Ned: Yes, and Wednesday at 1:00 PM when Congress meets, we may not know the results of the Georgia elections by then or we may have early returns. That one o'clock session of Congress, it's critical. It's supposed to be a formality, but with Trump resisting the result, it's going to be important that Congress is decisive in declaring Biden the winner.
Tanzina: That's Ned Foley. He's the Director of the Election Law program at Ohio State University and the author of several books on US elections. Ned, thank you so much for taking the time to talk with us today.
Ned: Thank you for having me.
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