The Legal Fallout Trump Still Faces From the Capitol Riots
The former president avoided conviction by the Senate for
inciting insurrection, but he may not have escaped legal accountability
By David Yaffe-Bellany
February 25, 2021, 2:00 AM EST
Defense lawyers for rioters facing charges have already
begun framing the unrest as the result of Trump’s violent rhetoric.
While Congress has moved on from impeachment to probing the
security failings leading up to the Jan. 6 riot at the U.S. Capitol, the legal
threats to former President Donald Trump may be only just beginning.
Senate Republican Leader Mitch McConnell laid out the
alternatives to impeachment in a Feb. 13 floor speech after Trump was acquitted
in his Senate trial. “We have a criminal justice system in this country,”
McConnell said. “We have civil litigation. And former presidents are not immune
from being held accountable by either one.”
Those legal threats to Trump are quickly taking shape. In
his Monday confirmation hearing as President Joe Biden’s nominee for attorney
general, Merrick Garland didn’t
specifically address the prospect of prosecuting Trump but said his Justice
Department would “work our way up to those who are involved and further
involved” in the Capitol riot. Defense lawyers for rioters facing charges have
already begun framing the unrest as the result of Trump’s violent rhetoric.
Last week, a Democratic congressman filed the first in what
is likely to be a series of lawsuits against Trump. In the coming months, those
suits could produce a steady drumbeat of revelations about Trump’s role in the
riot, as lawyers scrutinize his private communications and social-media
pronouncements.
Here are the ways the former president could be held
accountable for the siege of the Capitol.
Federal Prosecution
Shortly after the riot, the acting U.S. attorney in
Washington, Michael Sherwin, pointedly refused to rule out an investigation
into Trump or the other officials who spoke at the Jan. 6 rally. Sherwin’s top
deputy later appeared to backtrack, saying he did not expect to charge the speakers.
Sherwin’s office declined to comment.
The decision will ultimately rest with Garland and whomever
the Biden administration picks to replace Sherwin as Washington’s chief federal
prosecutor. A substantial obstacle to any prosecution is the U.S. Supreme Court’s 1969 ruling in a case
involving a Ku Klux Klan leader’s speech — the justices said the First
Amendment protects inflammatory
rhetoric unless it’s intended to produce “imminent lawless action and is
likely to incite or produce such action.”
Randall Eliason, a former federal prosecutor in Washington,
said Trump knew what he was doing. “If I’m a prosecutor, I feel pretty good
about this case,” said Eliason. “He knows who he’s talking to. He’s
talking to supporters who come from around the country and use rhetoric like
civil war, insurrection, violence.”
But Andrew Koppelman, a constitutional law expert at
Northwestern University, said such a prosecution would set a bad precedent.
“You can’t allow the government to lock up protest leaders whenever the
protests produce violence,” he said. “The Trump speech was full of lies, but
that’s not a crime. He told them to ‘fight like hell,’ but that’s familiar
political language that does not ordinarily produce violence.”
Local Charges
The attorney general
in Washington, Karl Racine, has said he’s investigating the speakers at the
rally and considering charges against the president.
Given the capital’s unique political status, the local
attorney general has only limited authority. The U.S. attorney acts as
the city’s main prosecutor for felonies, with the attorney general responsible
for prosecuting more minor crimes. Racine has said Trump may have violated a local statute against
inciting disorderly conduct, a misdemeanor charge carrying a maximum prison
sentence of six months.
Racine, who was recently named the president of the National
Association of Attorneys General, has spoken publicly about his desire to use
that platform to combat hate groups
like some of those that participated in the Capitol riot. But his office is
still weighing whether such a minor charge is the best way to hold the former
president accountable, according to a person familiar with the probe, and some
of Racine's early statements were aimed in part at pressuring federal
prosecutors to act. A local prosecution would also face the same legal burden
of proving that the former president’s speech was intended to cause harm.
A spokeswoman for Racine said the attorney general’s office
is “investigating whether former president Trump or any other individual
violated District law and illegally incited violence on January 6.” She
declined to comment further on the investigation.
Private Suits
Private lawsuits may
have a better chance of holding Trump accountable than criminal
prosecutions, said John Banzhaf, a law professor at George Washington
University. The standard of proof would be lower and Trump’s First
Amendment argument would be weaker in a civil case as well.
“If somebody was injured as a result of the riot, they would
have a cause of action,” Banzhaf said. “That would be true even if the injury
was kind of indirect — if someone was running away from the rioters and tripped
and fell and sprained an ankle or broke an arm.”
Last week, U.S.
Representative Bennie Thompson, a Mississippi Democrat, filed the first major suit over the riot,
claiming that Trump and his lawyer Rudy Giuliani conspired to incite the
riot in violation of an 1871 law enacted to combat Ku Klux Klan intimidation of
voters and officials.
Many potential claimants, notably police officers, could face
restrictions on their ability to sue over injuries suffered on the job. All
lawsuits against Trump also face the hurdle that presidents are immune from litigation over their official
actions. Trump would likely claim his Jan. 6 rally speech fell within his
presidential duties.
Joseph Sellers, a lawyer for Thompson, said in an interview
that he is preparing for that defense. “It was clear that his intention was to interfere
with the ability of Congress to complete the ratification of the
presidential election,” he said. “That could
not conceivably be part of the official duties of a president.”
Sellers said he also hoped the case would uncover new
details. “We want to inquire further about what was occurring with the
president during the afternoon of Jan. 6,” he said. “Whether he intended or
didn’t intend to whip up the crowd to engage in this kind of violence, he had ample
opportunity to take steps to curb the violence.”
The Rioters
Some major legal risks to Trump are emerging from an
unexpected quarter — his most fervent supporters. Of the more than 200
people now charged with storming the Capitol, many have moved quickly to cast
blame on the president and his rhetoric.
A member of the far-right Proud Boys claimed in a
court filing that he was “misled by the
president’s deception.” A leader of the Oath Keepers told associates
she was acting on Trump’s orders.
“My client among thousands of others operated under the good
faith belief that they were going to the Capitol at the invitation of the president,” said Albert Watkins, the lawyer for ‘QAnon Shaman’ Jacob Chansley, who stood
at the Senate dais in a horned hat and fur robe. “There’s no secret about
it.”
Rioters seem prepared to argue they weren’t at fault because
they were following orders by the president — a so-called public-authority defense. Such assertions could eventually buttress
a criminal prosecution or civil suits against Trump, while further undercutting
his public claims that he did nothing wrong. House impeachment managers quoted
copiously from rioters who said they were acting at the his behest during his
Senate trial. If Trump’s main defense to claims that he incited the riot is
that he couldn’t have foreseen what his supporters would do, there may no
better rebuttal than their own words.
“That would be very powerful evidence,” said Banzhaf.
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