Could Trump’s Georgia election call result in criminal charges?

President Donald Trump may have broken the law by asking Georgia’s secretary of state to 'find' enough votes to undo Joe Biden’s victory in the state

US President Donald Trump speaks during a Make America Great Again rally in Rome, Georgia, November 1, 2020. AFP

Legal scholars say US President Donald Trump's recorded request on Saturday for Georgia Secretary of State Brad Raffensperger to "find" exactly enough votes to undo his loss in the state could possibly constitute a breach of the law.

"It seems like one could put together a plausible indictment under federal or state law for essentially soliciting election fraud," James Gardner, an election law specialist at the State University of New York, told The National.

While the Justice Department does not indict a sitting president as a matter of policy, that does not extend to former presidents.

So whether or not prosecutors opt to move forward with criminal charges against Mr Trump once he leaves office on January 20 is an entirely different matter.

"[President-elect] Joe Biden's Justice Department is going to have to make a decision about what it wants in terms of Trump's activities, including this phone call," Ciara Torres-Spelliscy, an election law scholar at Stetson University, told The National.

“It’s not outside of the realm of possibility that Biden could pardon Trump to give the nation a break from all the partisan rancour.

“The closest analogy is President Richard Nixon. Nixon was facing criminal investigations of his activities with regard to Watergate and the break-in and the cover-up, and President Ford’s pardon insulated Nixon from future prosecution at the federal level.”

Mr Biden ran his presidential campaign with a message of unifying the country and trying to prosecute Mr Trump could further inflame the latter's devoted base.

Ms Torres-Spelliscy said former president Barack Obama’s Justice Department chose not to prosecute officials under George W Bush who were accused of authorising torture, suggesting that Mr Biden could take a similar approach with the Trump administration.

“On the one hand, in terms of the rule of law, no one is above the law so it’s not great if Trump gets away with one more crime because it makes him look like he’s above the law,” she said.

“On the other hand, it’s not particularly healthy for political leaders to be subject to prosecution by their partisan opposites.”

The question becomes thornier if Mr Trump opts to pre-emptively pardon himself – a constitutionally murky proposition.

But a presidential pardon only applies to federal, not state-level crimes.

Mr Raffensperger told ABC News today that his office would probably not open an investigation into his Saturday call with Mr Trump because of a conflict of interest.

However, he said that Fulton County District Attorney Fani Willis, a Democrat, could consider an investigation.

“Maybe that’s the appropriate venue for it to go,” Mr Raffensperger said.

But Mr Gardner said setting a precedent of district attorneys filing cases against former presidents could have adverse long-term repercussions.

He said most district attorneys throughout the country assume office through independent elections.

“It’s very troubling to me to think of opening this kind of Pandora’s box, where any kind of county-level yahoo anywhere can start criminally prosecuting presidents once they step down from office,” Mr Gardner said. “It’s quite alarming.”