Sen. Susan Collins (R-ME) predicted last year that, even without a Senate conviction, President Trump learned a lesson from the impeachment he faced for using the powers of the presidency to manipulate an election.
She’s right. The lesson he learned is that there would be no harm in him trying again.
But with Senate Republicans positioning themselves to let Trump off the hook the second time around, consequences for his election-subversion scheme might have to come from somewhere else.
In the weeks following Trump’s loss to Joe Biden, the President tried everything he could to undo the results. The effort included attempts to pressure election officials, twist the arms of legislators, weaponize the Justice Department, bully his vice president, and, when all those gambits failed, send an angry mob to the Capitol with the goal of circumventing Congress’ certification of Biden’s win.
For these actions, there could — and should — be consequences, legal experts told TPM. Imposing a penalty on these actions — be it political, legal or financial — is not just about punishing a former president for his attempt to subvert democracy. It’s about deterring similar actors from trying such schemes in the future.
“The main goal here is to deter anybody from ever trying this again. That’s what we have to do,” Campaign Legal Center Senior Director Adav Noti told TPM. “There has to be a penalty so that anybody in a future situation looks at this and says, ‘I will go to jail if I try this and so I won’t do this.’”
An ‘Exceedingly Real, Continuing Danger”
Impeachment is a critical and perhaps the most important forum for holding former President Trump accountable. But there are other tools in the tool box to exact a price for attempts to subvert elections. Already there are the inklings of potential civil actions, including a lawsuit brought by civil rights groups that accuses the Trump campaign of targeting black voters in its attacks on the election results, and defamation litigation brought by Dominion Voting Systems, an election vendor that Trump smeared.
And though the Justice Department’s investigations appear publicly focused right now on the individuals who actually breached the Capitol, criminal prosecutions may well be in the future for those who encouraged the assault, legal experts told TPM, while federal and state prosecutions could also cover some of Trump’s plots to reverse the results that preceded the mob on Congress.
“There’s obviously enough to have an investigation,” said Alan Rozenshtein, an associate professor at University of Minnesota Law School and a former attorney advisor in the DOJ’s Office of Law and Policy in the National Security Division. “Whether to have that investigation is a DOJ choice.”
Focusing just on Jan. 6 as a physical assault on the Capitol ignores “the exceedingly real, continuing danger” of the democratic assault that Trump waged, according to Justin Levitt, an election law professor at Loyola Marymount and former Justice Department official.
While there might not be many more attempts to breach the U.S. Capitol in the near-term future, Levitt said, the threat of broader assaults on American democracy — ones that mimic the other tactics Trump used — will persist.
“I simply don’t believe that he is the last person to try this tactic on for size,” Levitt said. Without accountability, he continued, “there will be no reason for those future threats not to give everything they got.”
That accountability could take several shapes, and while the upcoming impeachment proceedings will serve as an opportunity for broad political pushback to Trump’s disregard for democracy, those proceedings aren’t the only game in town.
“I do think it’s important that people know that it’s not just impeachment. And this didn’t happen alone,” said Jessica Levinson, a Loyola Marymount election law professor. “The president might have been the leader of this particular march but there were a lot of band members behind him.”
An ‘All Of the Above’ Strategy
So far, the band members who are in the deepest trouble are the Jan. 6 rioters who face criminal prosecutions for ransacking the Capitol. And those investigations will continue. But it could be in the Justice Department’s purview to probe how Trump and his inner circle set the stage from that insurrection, and not just with White House-adjacent Jan. 6 rally that preceded the breach.
“If you could mastermind or help run an insurrection on behalf of the sitting president without criminal accountability, our democracy is in trouble,” Noti, the CLC lawyer, who also did a stint in the D.C. U.S. Attorney’s office, told TPM.
There is already enough in the public record that would justify state or federal investigations, and not just probes into the events of Jan. 6 itself. Biden’s Justice Department could take an “all of the above” strategy, said Mary McCord, the former acting Assistant Attorney General for National Security at the DOJ, who has called for Trump to be investigated for inciting the insurrectionary mob.
She told TPM such an investigation could extend to the former president’s associates, as well as to other Trump actions, such as his attempt to pressure Georgia’s top elections official to “find” votes for him.
“I think all of that should be on the table in terms of an investigation,” she told TPM.
It could take months or even years for such criminal investigation to play out. Meanwhile, the success of civil actions will also depend on how they are framed and what they’re seeking, legal experts told TPM.
Those criminal or civil penalties might ultimately be “window dressing,” Levitt said, without the sweeping repudiation that an impeachment conviction would bring.
“The one thing that we really should do is what we are probably not going to do,” Levitt said. “There are still plenty of other actors who facilitated this, and there I hold out a little more hope that there will be accountability, and less hope that the accountability will fix the problem.”