Georgian Foreign Minister Brad Raffensperger used Georgian party consent law to record his call to President Donald Trump.
Photo by Jessica McGowan / Getty Images
One of the most recent twists and turns in the roller coaster ride, which is Georgia’s Senate double drainage race, came last weekend when the outgoing President of the United States spent an hour on the phone with Georgian Foreign Secretary Brad Raffensperger, sparking conspiracy theories and the state’s top electoral officer who “finds” enough votes to overthrow the November elections. That call has now been heard around the world after the recording was published on the Washington Post and AJC.
The call was the real Kraken released during President Trump and his allies’ post-election efforts to undo his electoral defeat. The legality of pressuring a state official to change the result of a three-count vote is a matter of debate for constitutional scholars and criminal experts.
Meanwhile, Trump supporters have discovered that it was Raffensperger who crossed a line by recording his own call. Senator David Perdue, who was fighting for a triumph, described the recording as “disgusting” in an interview with Fox News.
But as any journalist, divorce lawyer, or whistleblower in Georgia can tell you, it was perfectly legal for Raffensperger to record his own conversation.
Georgia – like the majority of states – has a law on the consent of parties when it comes to recording conversations. This means that one person on a call can record the conversation without the other person’s consent.
This can be used to protect journalists who conduct telephone interviews. (As a part-time journalism professor, I always instruct students that it is ethical to keep records, but it is not required.)
Recording your own calls and conversations can be used to protect yourself in legal proceedings. A member of a feuding couple can record a heated conversation with their other half and use it as evidence of divorce or custody negotiations, for example. Whenever you talk to your boss about pay or benefits, you can record the call to document what you’ve been promised.
“The law allows one person to record another person asking them to do something illegal or threaten them in any way that could be useful as evidence,” said Jess B. Johnson, litigator and partner at Godfather, Johnson & Church.
There can be a “gray area” when calling from a state with one-party consent to a state like California that requires both parties to agree to a call, Johnson says. It is wise to check the laws when making a call between states, as the law of the state with the strictest rules often applies.
In the case of the call between the White House and the Georgian Foreign Minister’s office, however, there was no problem as the District of Columbia also has a one-party law.
Raffensperger reportedly dodged 18 attempted calls from Trump before taking the president’s call like a damaged soul dealing with a confused ex. He had previously been burned when Senator Lindsey Graham called him to dispute the results in Georgia. Graham declined the call. This time the members of his office were ready to hit the tap when Trump dialed in. Even so, they stuck with the recording until Trump posted his own – and dissimilar – version of their conversation on Twitter.
The ability to publish records that hold those in power accountable or shed light on possible abuses of power is one of the bourgeois values of a one-party consent law. In 2019, a proposed law change was triggered by the aftermath of such a case. Casey Cagle, who ran for the 2018 GOP governor nomination, was partially replenished by a phone call from former competitor Clay Tippins, who recorded a conversation in which Cagle said he would support “bad public order” on political grounds . Cagle lost the nomination – won by Brian Kemp, who was then supported by Trump. The Cagle allies attempted to change the law in the next legislature. The attempt failed.
The law enables average citizens and public figures to protect themselves and to document disputes or misdeeds. When the dust has settled from the Trump controversy, likely some will look back at changing Georgian law.
“There is no need to change laws that are not violated. When law-abiding individuals have a harder time recording conversations, the public’s right to know can be frightening, ”said Jim Zachary, Georgia First Amendment Foundation president emeritus and CNHI director of education and development for the newsroom. “A change in the law could also encourage malefactors and make it far more difficult for a person – an investigative journalist, for example – to detect wrongdoing.”
Update: We’ve added a section to this story that talks about making calls from a single party consent state to a state where both parties must consent to a call.
