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Even today, nearly five years later, listening to Donald Trump’s call is shocking.
“So look. All I want to do is this. I just want to find 11,780 votes,” he told Georgia Secretary of State Brad Raffensperger and a few aides on January 2, 2021. Trump warned Raffensperger, a fellow Republican, that if he didn’t act, he would face prosecution: “That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.” And to underscore that he was asking Raffensperger to subvert the election results, he added, “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
The Washington Post obtained the call and published it on January 3. Three days later, a crowd of Trump supporters, whipped into a frenzy by the president, marched on the Capitol, attacked police, and sacked the building in an attempt to prevent the certification of Joe Biden’s victory. In the days, weeks, and years to follow, much more would be revealed: a long-running campaign, as dedicated as it was sloppy, to steal the 2020 election.
Trump and several associates were charged for their roles in the scheme in a splashy Georgia indictment, but the case’s dismissal last week, on the eve of the Thanksgiving holiday, received less attention. A judge acted at the request of Peter Skandalakis, the prosecutor appointed to handle the case after Fulton County District Attorney Fani Willis, who obtained the indictment, was disqualified from overseeing it. Skandalakis made both legal and practical arguments against the racketeering case, deeming the charges against some of the defendants weak. (The racketeering law allowed Willis to charge many people at once but created a sprawling case.) As for Trump, Skandalakis wrote, “There is no realistic prospect that a sitting President will be compelled to appear in Georgia to stand trial on the allegations in this indictment.” By the time he leaves office, “eight years will have elapsed since the phone call at issue.”
The Georgia case was the last remaining criminal case against Trump, and the last legal or political avenue to hold him accountable for the 2020-election plot. (It was also important because Trump cannot pardon himself or others if convicted in state court.) A federal election-subversion case against him was dismissed after he won reelection last November. State prosecutions against fake electors have not made much headway. And last month, Trump issued pardons to dozens of people implicated in the attempted subversion. In short, Trump has gotten away with his attempt to subvert the election: If the criminal-justice system is incapable of prosecuting attempts to steal an election, then stealing an election is de facto legal.
Each of these cases had its own wrinkles and reasons for failing. In the Georgia case, for example, Willis made grievous errors in judgment, intertwining her personal life and work by hiring a dubiously qualified special prosecutor with whom she was in a romantic relationship. Her racketeering charge was also ambitious but risky, as Skandalakis argued; the collapse of her case against the rapper Young Thug’s YSL group shows how such cases can go wrong.
The federal prosecution was set up for failure by Attorney General Merrick Garland’s decision to slow-walk prosecuting Trump to appear nonpartisan; the result was that by the time Special Counsel Jack Smith took over, he had little time to work. The Supreme Court used much of that time deliberating a challenge from Trump before issuing a startling opinion that gives presidents immunity for a huge range of “official” acts.
Political remedies haven’t worked either. The House voted to impeach Trump for his actions, but the Senate, under the influence of the GOP leader Mitch McConnell, failed to convict him. Republicans fell back on both legalistic claims—they argued that they couldn’t convict Trump once he was no longer president—and a misplaced belief that Trump would never be able to mount a political comeback. And when states tried to disqualify Trump from appearing on the 2024 ballot under the Fourteenth Amendment (a legally questionable approach), the Supreme Court blocked them.
All that remains are a few cases against the fake electors who allegedly formed alternative pro-Trump slates. A case in Michigan was dismissed. Wisconsin’s case is creeping forward. A case in Nevada was quashed by a trial judge on procedural grounds but resuscitated by the state supreme court; something similar happened in Arizona, where the attorney general has asked the state supreme court to revive a case. (That one also involves a few Trump allies.) Even if some of these cases succeed, though, they will punish the lowest-level participants while allowing the big fish—Trump chief among them—to swim free.
Trump’s pardon order guarantees that some of the high-profile figures will never face federal charges related to the 2020 election, including the lawyers Rudy Giuliani, Sidney Powell, Kenneth Chesebro, Boris Epshteyn, John Eastman, Jeffrey Clark, and Jenna Ellis, as well as former White House Chief of Staff Mark Meadows. (Trump’s order explicitly ruled himself out; he has previously said that he has the power to self-pardon, but many legal scholars disagree.) Giuliani and Eastman have lost their law license, and Clark may as well, but that’s hardly proportional punishment.
Notwithstanding the various prosecutors’ miscalculations that led to this point, it is possible that no effective legal path existed to hold Trump and his minions accountable. Despite their bumbling, their scheme was vague and diffuse enough that prosecuting them was tricky. This does not make election-subversion attempts acceptable, though; it means that lawmakers should write laws that would allow authorities to punish the kind of behavior that occurred after the 2020 election. Unfortunately, there is little prospect of that at the federal level or in potential key states. And as I wrote in The Atlantic’s December cover story, the president and his allies are already working to interfere in the 2026 election.
When moving to dismiss the Georgia charges, Skandalakis lamented the sordid aftermath of the election: “Never before, and hopefully never again, will our country face circumstances such as these.” The failure to punish the major figures, however, all but guarantees a repeat.
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Today’s News
- The Trump administration yesterday defended the legality of a September 2 attack on a suspected drug-smuggling boat in the Caribbean. Some members of Congress have called for an investigation into whether a second missile—fired after some people survived the initial strike—may have violated the laws of war.
- The special envoy Steve Witkoff and President Donald Trump’s son-in-law Jared Kushner are set to meet Russian President Vladimir Putin in Moscow to push for a peace deal to end the war in Ukraine.
- Former Honduran President Juan Orlando Hernández was pardoned by Trump and released from a U.S. prison, where he had been serving a 45-year sentence for cocaine smuggling.
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Rafaela Jinich contributed to this newsletter.
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