How Much of It Is a Crime: The Separation of Powers

Clearly there is more information on the January 6 insurrection than any normal person could possibly read, much less understand.  I hope to read the final report at some later time.  In the meantime, the obvious question is, assuming (as I think we must) that there is not enough evidence to charge Donald Trump in connection wit the actual violent insurrection, how much of his effort to overturn the election is a crime.

So far as I can tell, the answer lies in the matter we all learned in high school civics -- the separation of powers.  Specifically, the distinction between legislative, judicial, and executive power.  Because these are different.

First of all, acts of the legislature are not, and cannot be, a crime.  This is set forth in the Free Speech and Debate Clause of the U.S. Constitution, "[F[or any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place."  In other words, no speech or vote in Congress can be a crime, including a vote to certify the losing candidate as President.  Certainly, such a vote can be invalidated by the federal courts as unconstitutional.  The courts can also stay unconstitutional legislation pending review.  And any member of Congress voting to overturn the people's choice would have to answer to the voters at home.*  But it cannot be a crime, nor can it be civilly actionable.  

I can only further assume that urging members of Congress to certify the losing candidate as President is merely lobbying and, as such, also not a crime, absent some evidence of bribery of threat.**  And presumably an offer of a campaign contribution or endorsement is not considered a bribe, nor is the threat to back a primary challenger a threat.  Presumably most state constitutions contain similar protections.  I can only assume, therefore, that absent a bribe or threat pressuring state legislatures to overturn the election results might be reversible in the courts, but cannot be a crime.

Most participants seem to have made a similar assumption about court challenges -- that no matter how how outrageous or void of merit, court challenges cannot be a crime.  But other penalties are available.  Lawyers bringing a claim wholly without merit are subject to disciplinary penalties, ranging from being required to pay the other party's attorney's fees*** to disbarment. A suit wholly without merit cannot be a crime, but it may be civilly actionable for malicious prosecution or abuse of process.  And, finally, while lying on the floor of Congress is protected by the Free Speech and Debate Clause, lying under oath in a lawsuit can be prosecuted as perjury.  So suing to overturn an election, though seen by all parties as the first resort, actually carries more legal peril than trying to overturn the results in a federal or state legislature.

The executive branch is a different matter.  Its role is not to make or decide the law, but to carry out (execute) the law.  The executive branch's role in a election is to conduct and count the vote and announce the results. The executive must conduct the vote as the law sets forth and announce the result as the law provides.  Thus, any use of the executive branch to alter or falsify an election result is clearly a crime, at both the federal and state levels.  At a minimum, this is forbidden under 18 USC 595:

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 . . . , 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.

That makes it a federal crime for Georgia Secretary of State  Brad Raffensperger to falsify election results and criminal solicitation for Trump to ask him to do so. All states, including Georgia, have similar laws. Trump is currently under criminal investigation in Georgia for this call.

The offense is aggravated by Trump's apparent threat of criminal charges if Raffensperger did not deliver the results Trump wanted. That may rate as extortion under 18 USC 875(d):

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

(Emphasis added).  A telephone call is considered a transmission in interstate commerce. Admittedly this statute would only apply if changing an election result is considered a "thing of value," which I do not know.  Assuming that changing an election outcome is considered a "thing of value," the call would also violate 18 USC 872:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The use of the Department of Justice to overturn the election would also be a crime. Of course, that didn't happen because the Department of Justice resisted.  And, admittedly, the President has wide discretion to explore possible courses of action, including ones that turn out to be legal.  At what point mere discussion becomes criminal solicitation or criminal conspiracy is not always clear.  I will defer to a criminal lawyer on that.

What about the plan for private citizens to submit a slate of fake electors?  There is no specific law against impersonating an elector because no one ever thought of it before. Nonetheless there has been ample speculation about what other laws might be stretched to cover the fake electors.  One of the more plausible candidates I have seen are 18 USC 494, forging a public record:

Whoever falsely makes, alters, forges, or counterfeits any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or

Whoever utters or publishes as true or possesses with intent to utter or publish as true, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited; or

Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited—

Shall be fined under this title or imprisoned not more than ten years, or both.

The most obvious defense here would be that the fake electoral certificates look nothing at all like real ones and therefore cannot be considered forgeries.  

Also plausible is 52 USC 20511:

A person, including an election official, who in any election for Federal office—
(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for—

(A) registering to vote, or voting, or attempting to register or vote;

(B)urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or

(C) exercising any right under this chapter; or

(2)  knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—

(A) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held; or

(B)the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held,

shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

(Emphasis added). Of course, this law was not written with fake electoral ballots in mind, but casting them certainly deprives or defrauds the residents of a state of a fair and impartial election.

So, in short:

1. An act of a legislature (federal or state) to override the will of the voters is not and cannot be a crime, although it may be struck down as unconstitutional;
2. A lawsuit to overturn an election is not a crime, but is subject to disciplinary penalties if frivolous, and may be civilly actionable;
3. Any attempt by the federal or state executive to alter election results is a crime;
4. Private citizens submitting fake electoral certificates may be a crime.

All of this suggests that the weakest link in the chain of presidential elections is the legislative process.  Federal or state legislators are immune from criminal penalties for overriding the will of the voters and are are also the most subject to political pressure. This makes the legislature the most urgent area for reforms to make clear that such actions are invalid, even if they cannot be criminalized.  And, indeed, Congress has recently passed such legislation.**** 

We will see how it turns out.

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*Although that would probably not be a problem for most of them.
**Taking bribes has been held not to be protected by the Free Speech and Debate Clause.
***Presumably most of the participants are too rich to care.
****It also sets stricter standards about electoral certificates