On 2 January, a Saturday, Georgia Secretary of State Brad Raffensperger reluctantly got on an hour long conference call with US President Donald Trump. His deputy Jordan Fuchs and general counsel Ryan Germany joined.

With Trump were White House chief of staff Mark Meadows and attorneys Cleta Mitchell (whose partners at Foley & Lardner are ‘working to understand her involvement more thoroughly‘), Kurt Hilbert (who represented Trump’s interest in at least three cases against Raffensperger) and somebody called Alex. Politico reports that Trump was also joined by lawyers John Eastman (who represented him in the Supreme Court) and Rudy Giuliani, and by administration economists Peter Navarro and John Lott (who have written in support of his electoral fraud claims). These four are not recorded as having been announced.

A settlement meeting

The call’s purpose seems to have been to try to settle several cases challenging the outcome of the presidential election in Georgia. Meadows said (12:50)

And so Mr. Secretary, I was hopeful that, in a spirit of cooperation and compromise is there’s something that we can at least have a discussion to look at some of these allegations to find a path forward, that’s less litigious?

And Hilbert referred twice to ‘compromise and settlement.’ (52:30, 53:22)

Most cases can be settled. An election dispute could be settled by a candidate convincing the officials that they were wrong, or vice versa. But settling an election dispute on the basis of ‘cooperation and compromise’ — a horse deal, split the difference and call it good — is not on. (I would say the same about procurement litigation, but that’s for another day.)

Trump sets out his stall

Leaving aside whether settlement was a realistic goal, look at how Trump (the deal maker) performs. He outlines his case: He ‘won substantially in Georgia’.  His evidence: 25,000–30,000 people turn up at his rallies; ‘the competition’ get less than 100.  250,000–30o,000 ballots were ‘dropped mysteriously into the rolls’, with at least  a couple of hundred thousand forged in Fulton county (where most of Atlanta is). (00:38) And ‘another tremendous number’ in the fifties of thousands were not allowed vote. ‘And it’s a very sad thing. They walked out complaining, but the number is large we’ll have it for you, but it’s much more than the number of 11,779’ — the margin by which he lost. (01:42)

He goes on to identify six groups of irregular votes: 4,502 unregistered voters, 18,325 ‘vacant address votes’, 904 registered with post offices boxes, a video at State Farm Arena (home of the Atlanta Hawks) shows 18,000 votes pulled from suitcases under a table after a flooding incident when poll watchers were absent, 4,925 out-of-state voters, and dead voters — ‘the minimum is close to about 5,000 voters. The bottom line is when you add it up and then you start adding 300,000 fake ballots.’   

Trump piles on complaints — ballots are being burned and shredded, equipment is being removed.  But taking only the ‘minimum numbers’, they account for many times the 11,779 margin by which his total fell short. 

This continues for about 13 minutes. The ‘case’ being made is difficult to follow. Trump’s lays out a litany of grievances, and wants his fellow Republican to change the result.

So look, all I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state, and flipping the state is a great testament to our country because it’s a testament that they can admit to a mistake or whatever you want to call it, if it was a mistake. I don’t know. A lot of people think it wasn’t a mistake. It was much more criminal than that, but it’s a big problem in Georgia and it’s not a problem that’s going away. I mean, it’s not a problem that’s going away.  (37:48)

…

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. We have that in spades already, or we can keep it going … (44:10)

I’ll come back to whether that was even possible.

A more focused objective

Trump’s lawyers, Mitchell and Hilbert, seem to have two slightly more focused objectives.  Fifty-two and a half minutes into the call, something comprehensible emerges. Hilbert lays it out: Using only official data of the Georgia Secretary of State and the US Postal Service, four of Trump’s categories add up to ‘actually hard numbers of 24,149 folks that were counted illegally.’  Since that exceeds Biden’s victory margin in Georgia, Trump’s team would like an opportunity to discuss ‘this limited category of votes.’

It is the most lucid moment of the call. Germany takes up the offer. But it’s clear from the tone that now everyone is trying to bring the Saturday call to end. Already Trump has ruefully acknowledged:

And I know this phone call is going nowhere other than ultimately… Look, ultimately, I win. Okay? Because- (48:23)

Lawyers out of sync with client

A second objective of Trump’s lawyers is to look for more information.  They try at least six times. But they haven’t convinced their client. He has zero interest. He shuts them down every time, usually by moving quickly to a different subject.

This starts when Raffensperger said that the dead voters had been investigated. There were two dead voters; not the 5,000 claimed. Trump turned to Mitchell, whose response was to ask Raffensperger for records, to match the voters with the dead. Without pressing this or even waiting for an answer, Trump moved on to State Farm Arena, now saying that it is 56,000 votes: each of the 18,000 was scanned three times. (19:23)  Mitchell won’t agree with her client. (26:14)

When Raffensperger and Germany say that Georgia Bureau of Investigation investigated the incident, Michell asks: ‘Well, what did they find?’  A sensible question, but not what the client cares about. Rather than wait for an answer, Trump interjects: ‘There’s only two answers, dishonesty or incompetence.’  And moves on to voters who had left the state (some 4,500 according to Mitchell; Trump thinks it’s in the 20s). Germany responds that these have been investigated and found to be people who left the state at some time but returned afterwatds. Trump is sceptical. Again, Mitchell asks for information. Again, Trump is not interested, and moves to rumours of shredded ballots. (27:40)

Lawyer and client disagree again about why signatures were verified in Cobb County, not Fulton.

Germany: (32:59)  We chose Cobb County because that was the only county where there’s been any evidence submitted that the signature verification was not properly done.

Trump: (33:07)   No, but I told you, but we’re not saying that.

Mitchell: (33:10)  We did say that.

Later, Trump asks about a batch of military votes that all went to Biden. He considers this an anomaly, and it seems that Mitchell has spotted another opportunity to seek more information.

Trump: Does anybody know about it?

Mitchell: I know about, but we were never –

Trump: Okay, Cleta. I’m not asking you Cleta, honestly. I’m asking Brad. (40:56)

As Trump is regretting his decision to endorse Georgia Governor Brian Kemp two years ago (against Stacey Abrams, now one of Georgia’s presidential electors), Mitchell interrupts to ask for more information, now for the fifth time. Trump: ‘We don’t need it because we’re only down 11,000 votes.’ (49:18)

Finally, after Germany has agreed to have lawyers on both sides meet to look at Trump’s ‘narrow categories’, Meadows tries to add an assumption that there will be additional access to the Secretary of State’s data. Germany resists this, citing legal constraints. Hilbert creatively asks whether Trump’s lawyers can be ‘deputised’ and given access to private information that way. Trump shuts it down: ‘We got the information on the stuff we’re talking about. We got all that information from the Secretary of State.’ (56:45)

The Georgians

Raffensperger didn’t want the call.  Less was at stake for him than Trump. But a call from the Oval Office is important, and he surely wanted to be credible.

I think he had a choice to make. He could be ‘judicial’ or he could enter the fray. He tried to steer a middle course.

The judicial approach would probably have been wisest — if he had the discipline to hold to it. He could have said: the Georgia count is over. Three counts in fact: the original tally, a manual recount, and a third machine count. The results were certified and recertified on 7 December over the hand of Governor Kemp and the great seal. Georgia’s 16 electors met in Atlanta on the appointed day, 14 December, and cast their votes for president and vice president. Their certificate of vote has been sent to Washington and is now in a mahogany box in the US Capitiol. The Georgia result is out of his hands. Literally. He can investigate complaints and consider how to discipline or punish wrongdoers, or improve processes, but he cannot change the contents of the mahogany box. In lawyer speak, he is functus officio.

Or he could engage — try to show Trump that Georgia did it right. This would have required more preparation than Raffensperger and his colleagues seem to have done.

When he is first invited to respond to Trump’s litany of complaints, he seems to be going the judicial route: He says that the issues raised have been dealt with in three long hearings with legislators. But he gets sucked in. He tells Trump ‘the data you have is wrong.’ (19:23) He engages on dead voters (5,000 claimed, two found). He says that the State Farm Arena incident is not as depicted in a video ‘sliced and diced’ by Rudy Giuliani or his people (22:59).  He and Germany engage on exiles, shredding, removal of machines, Cobb County signature verification, a pointless debate about whether a settlement agreement is a consent decree. They are not able to answer Trump’s questions about provisional ballots, military votes that went to Biden, whether the votes scanned at State Farm Arena by a particular worker all went to Biden. Eventually Raffensperger says: ‘We have to to stand by our numbers. We believe our numbers are right.’ (48:07)

To engage effectively and convincingly, Raffensperger and his colleagues needed be better prepared. Trump tweeted:

He was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more. He has no clue!

Perhaps the Georgians were down a man.

Watching the count on the days and nights after the 3 November election, I was impressed with the quiet competence of the state and county officials managing the count and dealing with media throughout the US. One of them was Gabriel Sterling, a conservative Republican and Georgia’s voting systems implementation manager. He wasn’t included in the call (he was smoking brisket). On 4 January he held a press conference and (again) dealt with Trump’s complaints point by point. Crisply. Clearly. He could have done that on the call.

What were they trying to do?

Even if  Raffensperger had been convinced to flip the election: how could that happen? Again, it was out of his hands. The electoral votes had been cast and returns sent to Washington. To Senate President (and US Vice President) Mike Pence.

 3 US Code §15 prescribes what is to happen on 6 January. At a joint session starting at 1pm, Pence will open the state (and District of Columbia) certificates one by one. He will hand each one to the four tellers (two senators and two representatives). They will read the certificate out loud, count the votes, and hand the result to Pence, who will announce it and ‘call for objections’. If there are any written objections signed by at least one member of each house, the Senate withdraws to its own room and each house considers the objections. They must not reject votes ‘regularly given by electors whose appointment has been lawfully certified’ under 3 US Code §5 by a state from which only one return has been received.

Under 3 US Code §5 a state law final determination of  winning electors made by 8 December is ‘conclusive’. Kemp’s 7 December certificate seems to be in this ‘safe harbour,’ being the final determination of the elected slate of electors under GA Code § 21-2-499(b). Thus,  it would be unlawful for either house to reject votes ‘regularly given’ by the 16 electors certified by Kemp on 7 December — even if its members agreed with a change of mind on the part of Georgia officials.

But even if that hapened, it wouldn’t flip the state. A succesful objection would leave Georgia’s 16 votes uncounted.

To flip the state would require something extraordinary. Kemp would have to sign and seal a new certificate certifying 16 Republican electors; then those electors would have to meet in Georgia (late) and cast their votes for Trump and Pence, and send a certificate of vote to Washington. If that second certificate got to Pence, he would be opening two returns from Georgia: one giving 16 votes to Biden and Harris, the other giving 16 votes to Trump and himself. Again 3 US Code §15 says what to do: The only votes to be counted are those ‘regularly given by the electors who are shown by the determination mentioned in [3 US Code §5, that is, Kemp’s 7 December certificate]  to have been appointed’.  So again, it would not be lawful for Congress to reject the regularly given votes (for Binden and Harris) of the electors certified by Kemp on 7 December. So there can be no late substitution.

If this is correct, there was nothing that Trump could gain from the call — even in the unlikely event that he managed to persuade Raffensperger to change the result after three counts.

Pence

On 5 January, Trump tweeted ‘The Vice President has the power to reject fraudulently chosen electors.’  As we have just seen, this is not correct: it is not what the federal statute lays out.

To reject votes by himself, Pence would have to dispense with 3 US Code §15, which codifies the Electoral Count Act 1887, §7. That law was enacted following the disputed outcome of the 1876 presidential election — ultimately resolved by a disastrous compromise: the southern states accepted the Republican candidate, Rutherford Hayes, and post-civil war reconstruction was ended, clearing the way for the Jim Crow system.

The only basis for dispensing with the Electoral Count Act 1887 would be to say that it is unconstitutional (as some Republicans have claimed). That it violates the 12th Amendment, which states: ‘the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted‘. (My italics.) Note the passive voice. The Constitution does not say who counts the votes. But as we have seen, the Electoral Count Act 1887 (3 US Code §15) does. It says that four tellers, two from each house (by tradition, two from each party), do the counting. And the houses, meeting separately, decide on objections. To usurp the tellers and the houses, Pence would have to say that the 12th Amendment implies that he is to count the votes by himself. And not only count them, but decide which to count. And that the senators and representatives are mere observers.

That would be a surprising result. 

Lessons

Going back to the 2 January call as a settlement meeting case study, what can we learn?

First, before going into to negotiate settlement, you need to work out what you are trying to achieve. Part of that is assessing whether it is achievable. Trump wanted to flip Georgia. Not only was this inconceivable as a practical matter, it seems that it was legally impossible.

Second, you need a playbook. Trump’s side did have had a somewhat focussed objective — get Georgia to re-examine a ‘limited category’ of 24,149 votes said to be illegally cast. That at least is comprehensible. But it wasn’t made clear until the call was almost over, and got lost in the litany of Trump’s complaints.

Raffensperger could have done with a playbook too. He doesn’t  seem to have decided how to deal with the Trump complaints, whether to engage on the call or refuse. If he was going to engage, his team should have been better prepared. If he wasn’t, he should have stuck to that.

Third, you need the right people in the room. Not just people with authority (although that’s the most important thing), but also people with the necessary information and expertise. To deal in detail with Trump’s complaints, it looks like Raffensperger needed Sterling.

Fourth, the team needs to be on the same page. Trump’s lawyers were looking for information, but Trump didn’t care about that. Trump is said to be a difficult client. Even difficult clients are entitled to make their own decisions. It is a lawyer’s job to understand the client’s objectives before going into negotiations. And to make sure that the client is informed on the pertinent facts. If only to avoid the embarrassment of having your client knock you back six times or more.