No grounds for claim that Raffensperger could face spy charges over Trump call

The telephone call President Donald Trump made to Georgia Secretary of State Brad Raffensperger — in which he implored Raffensperger to "find" enough votes to overturn his defeat in Georgia — was part of Trump’s attempt to remain in the White House. 

It led to calls for a criminal investigation and even for Trump’s impeachment, with only weeks before his term ends and President-elect Joe Biden is inaugurated.

But not all of the backlash was aimed at Trump.

The fact that the Jan. 2 call was recorded and leaked to the news media also spurred a claim that Raffensperger "faces espionage charges."

The claim was made in a widely shared Facebook post that was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

Legal experts told us it would not be illegal for anyone on either end of the call to record it, or to disseminate the recording. Furthermore, the conversation did not bear on sensitive national security matters covered by the federal Espionage Act.

"This is silly," said University of Texas law professor Stephen Vladeck, whose specialties include national security and constitutional law. "Not only is there no universe in which the conversation between Trump and Raffensperger included the kind of ‘information relating to the national defense’ that’s covered by the Espionage Act, but the president himself publicly described the conversation" the next day in a tweet.

"There’s nothing close to a crime here."

Raffensperger, a Republican, has maintained that Georgia’s returns accurately reflected a Biden victory in the Nov. 3 election. Votes were counted three times, showing Biden won by nearly 12,000 votes.

In the call, Trump told Raffensperger: "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."

The Jan. 4 Facebook post is from Conversation Controversy, which is identified as a media user on Facebook. It includes a 2.5-minute video narrated by Doug TenNapel, who is a graphic novelist, video game designer and a former writer for the conservative website Breitbart. 

In the video, TenNapel doesn’t mention espionage, but cites a Jan. 4 article by the Gateway Pundit, a conservative website, that does. 

The article references a Jan. 3 tweet by Jack Posobiec, a reporter for One America News Network, a conservative cable news service. The tweet, which alludes to the Washington Post story that revealed the telephone call, claimed that the White House is "planning to refer Brad Raffensperger WaPo leak to Secret Service for investigation under national security grounds of the Espionage Act."

Neither the article nor the tweet cites any evidence that Raffensperger is facing espionage charges. The White House, the Secret Service and TenNapel didn’t reply to our requests for information.

As for how the recording was leaked, the Post and the Atlanta Journal-Constitution both reported that they obtained the recording the day after the phone conversation, but did not say how they obtained it. Raffensperger’s office did not respond to our requests for comment. 

Vladeck and Asha Rangappa, a Yale University national security law instructor and former FBI agent, said that both Georgia and Washington, D.C., are one-party consent jurisdictions — meaning it is legal to record, and to distribute recordings, made with only one party’s consent.

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Raffensperger has indicated that the recording was released because Trump’s tweet "broke privacy" and contained false information. Trump’s tweet said that in the call, Raffensperger was "unwilling, or unable, to answer questions" about voter fraud in Georgia.

"If President Trump wouldn’t have tweeted anything and would have stayed silent, we would have stayed silent, as well," Raffensperger said in a TV interview.

Vladeck knocked down Posobiec’s report on Twitter. He and Rangappa said the FBI, not the Secret Service, investigates violations of the Espionage Act.

Given that the phone conversation had to do with counting votes in Georgia, "to me, it’s absurd on its face" that disclosing what was said could violate the Espionage Act, Rangappa said.

The Espionage Act "covers certain unauthorized disclosures of ‘national defense’ information," said Columbia University law professor David Pozen. 

"Even the most expansive definitions of this term that I’ve ever seen proposed would not cover what happened here. The idea that Raffensperger should face Espionage Act charges is absurd and outrageous."

A Facebook post claimed Raffensperger "faces espionage charges."

There is no evidence for the claim. 

Moreover, legal experts said it is not illegal for Raffensperger or anyone on the call between him and Trump to have recorded the call, or to have shared the recording. And disclosing discussions about ballot counting in Georgia do not involve sensitive national defense information that would invoke the Espionage Act, the experts said.

We rate the claim False.