While the Senate considers whether Donald Trump’s incitement of the Capitol mob is a “high crime and misdemeanor” worthy of impeachment, he and his associates may be on the hook for separate, criminal prosecutions.
Charging a former president would be an explosive move by the Justice Department, which refrains from prosecuting sitting presidents. Yet it has no internal prohibition against charging a former president once he’s out of office.
Based on the publicly available facts, a look at what Trump and his allies may have expected the Jan. 6 rally to achieve could be warranted, former federal prosecutors told TPM. Some raised the possibility that Trump-world could be exposed to a seditious conspiracy prosecution. Then, there are the many failed election-reversal plots that came before Jan. 6, which involved the former President and his associates leaning on local election officials and demanding that states “find” votes. Investigators might find that those efforts violated various election laws.
At the very least, legal experts say, the former President and those who facilitated the maneuvers aimed at disrupting the results should be taking seriously the threat of criminal investigations.
“They better be investing in some very competent criminal defense counsel,” Justin Levitt, a Loyola Marymount election law professor, told TPM.
Building A Case Around The Insurrection
The Justice Department is already steadily bringing charges against the rioters who allegedly ransacked the Capitol. It remains to be seen whether the DOJ prosecutions reach those who didn’t make it into the Capitol, but egged on the riot — including top White House aides or members of Congress who cheered on the rally, potentially with the awareness that it could get violent.
“It’s almost inconceivable to think, given what we already know, that there aren’t facts to support a criminal prosecution for some conduct related to the riots on Jan. 6,” said Campaign Legal Center Senior Director Adav Noti, who added that he was talking about prosecutions beyond the low-hanging “disturbing the peace” and “disorderly conduct” charges that the Department has started with.
“I am talking about a conspiracy charge of some kind,” Noti, who also did a stint in the D.C. U.S. Attorney’s office, told TPM.
The Department would want to look at links between the White House and the insurrectionists, said Harry Sandick, a former federal prosecutor in New York.
“I doubt you’d find evidence of Trump on the phone with the Shaman guy,” Sandick told TPM. “It’s more likely that you’d find evidence of coordination between members of these different organizations with people who are, let’s say, a step or two removed from the White House.
Sandick noted how many of the rioters have described their invasion of the Capitol as simply the result of following directions from the President. He recalled the prosecution of Bush-era torture practices that targeted the on-the-ground perpetrators but not those higher up the chain.
“If you have people who say, ‘Look, the reason I did this was I was told to do this by the President.’ Well then how can you not look at the President?” Sandick said. “You don’t want to have a situation like what we had with Abu Ghraib, where the only people who get prosecuted are the idiots who took the actions, and their leaders all escape responsibility.”
Still, the Department could be hesitant to charge a former president, and particularly hesitant to charge a former President for in-office conduct that the Senate — assuming the House doesn’t get two-thirds Senate support for conviction — has acquitted.
“I do think one could credibly say ‘We’re not going to investigate a former president on anything less than overwhelming evidence,’” said University of Minnesota Law School professor Alan Rozenshtein, who previously served as an advisor in the DOJ National Security Division’s Office of Law and Policy.
“I don’t think that standard should apply to, ‘We’re not going to investigate any associates of a former president,’” Rozenshtein added.
Trump’s Schemes May Have Run Afoul Of Election Laws
Even before the events of Jan. 6, Trump may have exposed himself in all the other ways he tried to overturn Biden’s win, and especially with the Jan. 2 call to Georgia Secretary of State Brad Raffensperger in which the President demanded that Raffensperger “find” more votes.
But there are reasons to believe that the Trump aides that participated in this and other aspects of the pressure campaign could make for easier targets for prosecution.
Among the laws potentially implicated by the Raffensperger call — and perhaps by other Trump-world attempts to get officials to overturn the results — is one that criminalizes “attempts to deprive or defraud the residents of a State of a fair and impartial conducted election process”.
“Just because it wasn’t a successful attempt doesn’t mean you escape liability,” Jessica Levinson, an election professor at Loyola Marymount, said of Trump’s efforts.
Another relevant law — which was recently used to charge a pro-Trump internet troll for disinformation he spread about the 2016 election — targets conspiracies to interfere with the right to vote.
Those prosecutions, however, would turn on the President’s state of mind, because they have intent requirements.
“If [Trump] honestly believed … that the election was stolen and there were votes to be revealed, then he’s not criminally liable,” Levitt, who also served under Obama as top DOJ voting section lawyer, said. “If he didn’t really buy it, if he didn’t really think the election had been stolen, then he might well be criminally liable.”
Trump may well have “lost his grip in reality” sufficiently enough to protect him from such a charge, Levitt said. But his less unhinged advisors who assisted him in making the demands also could be covered by the law if they were part of the conspiracy.
‘“For those who understand reality, you have to prove there’s intent — it’s not the easiest prosecution ever — but I absolutely do think there’s a case to be made,” Levitt said. “Whether prosecutors choose to pursue it or not is a different question.”