Let’s count the legal ways Donald Trump could be charged for the US Capitol riots
Some of Trump’s most fervent supporters, 200 of whom have been charged, have moved quickly to cast blame on the president and his rhetoric
Washington — While the US Congress has moved on from impeachment to probing the security failings leading up to the January 6 riot at the US 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 February 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. Defence lawyers for rioters facing charges have already begun framing the unrest as the result of Trump’s violent rhetoric.
Last week, a Democrat 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 scrutinise his private communications and social media pronouncements.
Here are the ways the former president could be held accountable for the siege of the Capitol.
Shortly after the riot, the acting US attorney in Washington, Michael Sherwin, pointedly refused to rule out an investigation into Trump or the other officials who spoke at the January 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 whoever the Biden administration picks to replace Sherwin as Washington’s chief federal prosecutor. A substantial obstacle to any prosecution is the US 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.”
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 US 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 misdemeanour 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 spokesperson 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 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, US 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 January 6 rally speech fell within his presidential duties.
Joseph Sellers, a lawyer for Thompson, said that he is preparing for that defence. “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 January 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.”
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 he was 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 public-authority defence. 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 defence to claims 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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