The Washington Post caused a stir last week after admitting that it published a false account of statements made by President Donald Trump in a call with a Georgia election investigator. While the Post has been chastised by many of us for failing to address other false or ethically questionable articles, it did acknowledge that it got the story wrong (albeit three months later). The real problem is how such false stories are used to create an indelible narrative and lasting damage. Various experts used the false quotes to declare clear criminality while the House managers relied on the false account for the impeachment. None of these members or experts have acknowledged the changed record or the earlier reliance on a false account.
There were two calls on the Georgia electoral challenge and this correction concerns the six-minute exchange between the former president and investigator Frances Watson December 23, 2020. The transcript was published by the Wall Street Journal. The recording was found in a trash folder of the Georgia investigator and would not have been located absent the push from the WSJ.
In both calls, Trump pushed the officials to “find” the uncounted votes. There was pending litigation on such alleged uncounted votes and the other call with Georgia Secretary of State Brad Raffensperger (and both legal teams) was a settlement discussion. The entire stated purpose of the challenges was to count what the Trump campaign alleged were uncounted votes that surpassed his 11,780 deficit. Trump put forward different theories of how many more votes were destroyed or not counted. He continued to return to the fact that they only need to confirm 11,780 of those hundreds of thousands of allegedly uncounted ballots.
The Post now admits that it’s bombshell report from early January was wrong and that Trump never told Watson to “find the fraud” and that she would be “a national hero.” Rather, Trump stated that if the officials did a neutral investigation “you’re going to find things” including “dishonesty” – a position consistent with his electoral challenge. I still view Trump’s statements to be irresponsible and unwise. He should not have been on these calls in the first place and many of us criticized his rhetoric leading up the January 6th riot.
CNN has also been criticized for claiming that it confirmed the statements independently. Other media outlets confirmed the account as true and neither Watson nor any other official familiar with the calls corrected the false account for months. The story notably ran just before the Georgia elections and was used extensively in the coverage and the campaign.
I previously wrote about these exchanges in challenging arguments by figures like NYU law professor (and former Mueller deputy) Andrew Weissmann that Trump’s remarks clearly established the basis for a criminal charge. As a longtime criminal defense attorney, I believe these statements fall short of the type of clear criminal intent asserted by Weissmann.
Yet, other legal experts rushed to join the declarations of presumptive guilt. Worse still, the House eagerly latched on to the story to support Trump’s second impeachment. Rep. Madeleine Dean, D-Pa., repeated the false quote and insisted that “Trump urged him [sic], ‘Find the fraud,’ and claimed the official would be a national hero if he [sic] did. Let’s call this what it is. He was asking the official to say there was evidence of fraud when there wasn’t any.”
The controversy perfectly embodies the political and journalistic failures of the last four years with a false account being used in a rushed impeachment. Once again, the story was true because it had to be true; because people wanted it to be true. In the media, there is an old saying that there are simply “some facts too good to check.” The Post story fit the narrative and that is what mattered.
Legal experts have long joined “the coalition of the willing” in running columns eagerly proclaiming “smoking guns” and clear crimes against Trump. It does not matter that many of these same experts have declared a long litany of such crimes for years without their being used in an actual charge or an impeachment. Indeed, many declared Trump clearly and openly committed the crime of incitement in January. House managers insisted that he not only committed that crime but that he had no defenses (a position supported by dozens of professors and experts). Yet, he has yet to be interviewed, let alone charged, with that crime.
For Congress, there was even less interest in actually confirming such facts. When I testified in the first Trump impeachment, I criticized the House for proceeding on the thinnest record and in the shortest time of any presidential impeachment. In the second impeachment, the House outdid that record. They held no hearing at all. They conducted no investigation. They did not even give Trump a formal opportunity to respond in a one-day hearing. They used a “snap impeachment” for the first time in history. Due process be damned. Facts be damned. Like the impulse-buy reporting, this was an impulse-buy impeachment. The House did nothing for weeks before the Senate trial to confirm basic facts. It could have easily subpoenaed this recording, but decided to use a false press account. It did the same thing on facts surrounding the Jan. 6th riot. Rather than use weeks before the trial to call key witnesses and confirm basic facts, managers cited news sources like the Washington Post. It left the proof to the press and the press has little to prove when it comes to Trump.
There is still a criminal investigation in Georgia and a grand jury was recently impaneled. As a criminal defense lawyer, I do not doubt the ability to secure an indictment from a grand jury. (The stronger allegations remain tax and fraud claims from Trump’s businesses rather than his presidency). However, I was skeptical before and only more skeptical now on the ability to not just secure a conviction but defend it on appeal. We will have to wait for the evidence to fully evaluate any case against Trump. However, as with the criminal incitement claims, there are ample defenses available to Trump if any charge is based solely on these recordings. It is easier to proclaim such cases on television than to prosecute them in court. If charged, these cases could backfire in vindicating rather than convicting Trump of these crimes. Just in time for the 2024 presidential election.