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Did Trump's Call To Georgia's Secretary Of State Break Election Laws?

STEVE INSKEEP, HOST:

Kim Wehle is with us next for some analysis. She is a professor of law at the University of Baltimore. Happy new year. Good morning.

KIM WEHLE: Good morning, Steve.

INSKEEP: What is a proper legal term for what the president did on that call we just heard?

WEHLE: Well, potentially soliciting election fraud. As we've heard from the Republicans now for months, voter fraud, election fraud is a crime both at the federal and the state level, and it's also a crime to request, solicit or ask someone else to, say, falsify returns or falsify reports of votes. And arguably, that's what we heard on the call.

INSKEEP: Let me make sure I'm clear on this because the president has talked for months and months about election fraud. He's promoted election fraud. He's talked about a stolen election. I think you're telling me it's the president - at least there's evidence here in this call, which is recorded, of the president committing election fraud, seeking to commit election fraud, seeking to steal an election in Georgia.

WEHLE: Potentially. Remember; this comes down to a showing of intent. He said, I won by 400,000 votes in Georgia. Georgia was certified three different times. He lost by about 12,000 votes. So I guess he could make the argument, I didn't have the intent; I really believed that I won Georgia. But then the question is almost a 25th Amendment one. Is he so sort of untethered from facts and reality that he's not fit even for the remaining days of office? It seems like he can't have it both ways. But whether this is prosecutable is a different question from whether it's antithetical to the rule of law and the Constitution and democracy itself. And I would say clearly it is. It's very disturbing.

INSKEEP: Let me ask about the other people on this call. We heard that Mark Meadows, the White House chief of staff, is on the call. Also, Cleta Mitchell - new name to this continuing effort to overturn a democratic election. She's a Republican lawyer. She's on the call. We just heard the recording. She's repeating false statements. She's repeating those false statements in service of the president's larger lie that he won the election. Is it ethical for a lawyer to participate while her client tells obvious lies and tries to use them to overturn an election?

WEHLE: Well, under the model rules of professional conduct, it's a little bit delicate. It is unethical for a lawyer to assist a client in some kind of fraudulent or criminal activity. It's not unethical to advise the implications of a certain course of action and say, listen; that's a problem that's going to get you in trouble. But once it becomes clear to a lawyer that your client is asking you to help them engage in something that's illegal, then it's ethically the obligation of the lawyer to withdraw from that representation.

INSKEEP: So you're saying that the only way she could claim that she was ethical in this situation is to say, listen; I actually believed all these lies.

WEHLE: Or, you know, I told him this is a problem behind closed doors, that he should really pivot off of this given the potential legal implications of it. And we just don't know. Those are - of course, those communications would be covered by the attorney-client privilege.

INSKEEP: You said it gets down to the question of intent. And, of course, it's hard to determine anyone's intent. But there is the fact of what the president did. Is it legally meaningful here that in raising questions with the Georgia secretary of state for an hour - I mean, he raised various conspiracy theories. I guess in a way he was talking about the process, even though his facts were wrong, according to the Georgia secretary of state. But is it legally meaningful that his specific request to the secretary of state was to, quote, "find" exactly enough votes for Donald Trump to happen to win the election by exactly one vote?

WEHLE: Well, I think the argument there is he's not asking for a fourth certification. Listen; we really want to make sure this was done accurately. Because it was. We know that factually. So the question is, was he seeking, under federal law - knowingly attempted to stop a free and fair election and have votes swayed in his way? I think that some would say yes.

INSKEEP: Would you support the calls by some Democrats for a criminal investigation here? Is there enough to look at?

WEHLE: You know, I'd leave that to the prosecutors. I think it's really a political question here. I think this certainly is impeachable. And we have to remember what's going on here. This is a plea across the board to take democracy away from the people and give it to politicians. We should have that debate, but name it for what it is.

INSKEEP: Kim Wehle is a professor of law at the University of Baltimore. Thanks, as always, for joining us.

WEHLE: Thank you, Steve.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.