Trump’s criminal conspiracy to overthrow the Presidential election results

Update (December 6, 2020).  See also,

52 U.S.C. 10307(a)

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Trump’s criminal conspiracy to overthrow the Presidential election results | The Trenchant Observer – bit.ly/33aOEk7 Here are statutes, and legal analysis that supports the headline. Thanks, Ryan, for calling attention to 52 U.S.C. 10307(a) @trenchantobserv @rgoodlaw

 

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President Donald Trump appears to be leading a vast criminal consipracy to overthrow the results of the Presidential election on November 3, 2020. His current strategy appears to be to influence and/or intimidate state and local Republican election officials so that they do not certify the vote totals as required by state law.

The battle of certification is part of a larger strategy to prvent Joe Biden from gaining 270 electoral votes when the Electoral College meets on December 14. If Trump succeeds in this gambit, under the 12th Amendment the election would be thrown to the House of Representatives and a so-called “contingent election”, in which each state has one vote as determined by a majority of its Representatives in the House. Because Republicans control more state delegations than Democrats, this could lead to the election of Donald Trump as the next President of the United States.

Giuliani has laid this out, as follows:

Rudy Giuliani, Trump’s personal attorney, told associates that his goal is to cast enough doubt on the election that state legislatures won’t certify the results for Biden. “Rudy told people he was trying to get the legislatures to flip,” a source familiar with the campaign’s legal strategy tells TIME. “Rudy’s view of the world is if he does a good enough job inflaming the results, Pennsylvania won’t certify, Wisconsin won’t certify.”
–Mish, “Trump’s Maneuver to Intimidate Michigan Lawmakers Fails”, The Street, Mish Talk, November 20, 2020,

The problem with Trump’s strategy is that it involves a large conspiracy to get state election officials to criminally violate state election laws.

A typical state law is that of Louisiana, which provides:

LA Rev Stat § 18:1461.5
§1461.5. Election offenses involving bribery, threats or intimidation of election officials or candidates; penalties

A. No person shall knowingly, willfully, or intentionally:
(1) Offer money or anything of apparent present or prospective value or use, directly or indirectly, or engage in any form of intimidation to influence the action or encourage inaction of any election official with regard to the duties of his office.

B. Whoever violates any provision of this Section shall be fined not more than two thousand dollars or be imprisoned, with or without hard labor, for not more than two years, or both, for the first offense. On a second offense, or any subsequent offense, the penalty shall be a fine of not more than five thousand dollars or imprisonment at hard labor for not more than five years, or both.

Acts 2010, No. 797, §1, eff. Jan. 1, 2011; Acts 2012, No. 585, §1.

Attempting to influence a state official to violate a state law is also a federal crime for “a person employed in any administrative position by the United States or by any department or agency thereof”.   This would appear to apply to administrative employees at the White House and other agencies who help Trump.   See 18 U.S.C. Section 595

18. United States Code Section 595.  Interference by administrative employees of Federal, State or Territorial Governments

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

Conspiracy to intimidate or influence a state election official to violate state election law is both a state and a federal crime. There are several provisions of the U.S. Code that might apply::

The general conspiracy law, 18 U.S.C Section 371, provides:

18 U.S. Code § 371 – Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

(June 25, 1948, ch. 645, 62 Stat. 701; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Section 371 would apply to a conspiracy to overturn the 2020 Presidential election by illegally influencing the appointment of electors and their appointment by the Electoral College. See

Congressional Research Service, Federal Conspiracy Law: A Brief Overview (Updated April 3, 2020), reprinted in EveryCRSReport.com, “Federal Conspiracy Law: A Brief Overview, April 30, 2010–April 3, 2020.

Conspiracy to Defraud the United States

“Section 371 has two prongs, alike but for a single exception. The first, more frequently prosecuted, requires agreement, overt act, and an underlying federal criminal offense. The elements of the second prong, sometimes styled conspiracy to defraud the United States, do not require an underlying federal criminal offense. The elements of conspiracy to defraud the United States under 18 U.S.C. § 371 are: (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators.  The “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.”  The plot must be directed against the United States or some federal entity; a scheme to defraud the recipient of federal funds is not sufficient.68 The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice.”

In addition, Trump’s conspiracy constitutes a conspiracy to violate the civil rights of voters in general, and the rights of African-American and other minority voters in Detroit in particular. See

42 U.S. Code § 1985. Conspiracy to interfere with civil rights

42 U.S. Code § 1985 (Conspiracy to interfere with civil rights) specifically provides in Section (3) the following:

(3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

Trump called two canvasing board officials in Michigan to influence their votes to certify the election in the Detroit area. After he spoke to them, they both sought to rescind their votes to certify the vote count, which they had cast earlier.  However, the votes having been cast, they could not be rescinded.

Trump then invited seven Michigan Republican legislators to visit the White House on November 20, reportedly to urge them to ignore the vote and appoint a separate slate of electors pledged to supporting him to the Electoral College.

See,

Mish, “Trump’s Maneuver to Intimidate Michigan Lawmakers Fails”, The Street, Mish Talk, November 20, 2020,

The author quotes seven Michigan lawmakers who went to the White House at the invitation of President Trump to discuss the Michigan election results.

Seven Michigan lawmakers traveled to meet with Trump for about an hour. The visit came as supporters of the president have moved in recent days to overturn the results of the state’s election, which Democratic President-elect Joe Biden won by more than 154,000 votes in unofficial returns.

“We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election,” House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey said in a joint statement after the meeting.

“These are simple truths that should provide confidence in our elections,” they added.

Not Tiddlywinks

The White House press secretary defended the meeting “He routinely meets with lawmakers from all across the country.”

Let’s get real. This was a strange meeting at the very least. Trump did not invite Michigan legislators to the White House to play tiddlywinks or for idle chat no matter what they actually discussed.

These are the crimes that Trump and his co-conspirators are committing as they seek to overturn the results of the 2020 Presidential election.

When it becomes possible, after January 20, 2021, they should be prosecuted for these crimes, at the federal and/or the state level.

Trump’s conspiracy to overturn the election results through the commission of these crimes represents perhaps the greatest assault on our democracy and Constitution since the Civil War.

It amounts to one element of what appears to be an attempted coup d’état in progress.

The Trenchant Observer

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