WASHINGTON (AP) – Donald Trump’s acquittal in his second impeachment trial may not be the final word on whether he is to blame for the Capitol’s deadly turmoil. The ex-president’s next step may be justice.
Now an ordinary citizen, Trump is deprived of his protection against the legal responsibility the presidency has given him. This change in status is something that even the Republicans who voted on Saturday to absolve the incitement to the January 6 attack are emphasizing while urging Americans to stop impeachment.
“President Trump is still responsible for everything he did while in office, as an ordinary citizen, unless the statute of limitations has been enforced,” said Senate minority leader Mitch McConnell of Kentucky after this vote. . He insisted that the courts were a more appropriate place to hold Trump accountable than a Senate trial.
“He hasn’t gotten away with anything yet,” said McConnell. “Yet.”
The Capitol insurrection, in which five people died, is just one of the legal cases that accompany Trump in the months after he was elected out of office. He also faces legal exposure in Georgia about an alleged pressure campaign on state and Manhattan election officials about secret money and business payments.
But Trump’s guilt under the law for inciting the riot is by no means clear. The standard is high in court decisions that go back 50 years. Trump can also be sued by the victims, although he does have some constitutional protections, including whether he acted while fulfilling the duties of president. Such cases would depend on your intention.
Legal experts say that a proper criminal investigation takes time and that there is at least five years of prescription to open a federal case. New evidence is emerging every day.
“They are too early in their investigations to find out,” said Laurie Levenson, a law professor at Loyola Law School and a former federal prosecutor. “They arrested 200 people, they are chasing hundreds more, all of these people could be potential witnesses because some said ‘Trump made me do this’.”
What is not known, she said, is what Trump was doing during the turmoil, and that could be the key. Impeachment did not produce many responses. But federal investigators in a criminal investigation have far more power to compel evidence through grand jury subpoenas.
“It is not an easy case, but only because what we know now and that can change,” said Levenson.
The legal question is whether Trump or any of the speakers at the rally near the White House that preceded the attack on the Capitol incited violence and whether they knew his words would have that effect. This is the standard that the Supreme Court set in its 1969 decision in Brandenburg v. Ohio, which annulled the belief of a leader of the Ku Klux Klan.
Trump urged the crowd on January 6 to march on Capitol Hill, where Congress was meeting to confirm Joe Biden’s presidential election. Trump even promised to go with his supporters, although in the end he did not. “You will never take our country back weakly,” said Trump.
He also spent weeks attracting supporters because of his increasingly combative language and false electoral claims, urging them to “stop the theft”.
Trump’s impeachment lawyers said he did nothing illegal. Trump, in a statement after the acquittal, admitted no wrongdoing.
Federal prosecutors said they were looking at all angles of the attack on the Capitol and whether violence was incited. District Attorney General of Columbia Karl Racine said that district prosecutors are considering prosecuting Trump under the local law that criminalizes statements that motivate people to violence.
“Let it be clear that the attorney general’s office has a potential charge that he can use,” Racine told MSNBC last month. The charge would be a misdemeanor with a maximum sentence of six months in prison.
Trump’s top lawyer at the White House repeatedly warned Trump on January 6 that he could be held responsible. That message was delivered in part to lead Trump to condemn the violence that was perpetrated on his behalf and to acknowledge that he would step down on January 20, when Biden was sworn in. He left the White House that day.
Since then, many of the defendants in the riots say they were acting directly under Trump’s orders. Some offered to testify. A phone call between Trump and Republican leader Kevin McCarthy emerged during the impeachment trial in which McCarthy, while protesters stormed the Capitol, begged Trump to cancel the crowd. Trump replied, “Well, Kevin, I think these people are more upset about the election than you are.”
McCarthy’s call is significant because it can point to Trump’s intention, mood and knowledge about the rioters’ actions.
Court cases that attempt to prove incitement often run into the First Amendment. In recent years, federal judges have taken a tough stance against riot law. The federal appeals court in Virginia reduced the Anti-Riot Act, with a maximum prison sentence of five years, because it swept through the speech protected by the constitution. The court found invalid parts of the law that included speech tending to “encourage” or “promote” a riot, as well as speech “urging” others to protest or involving mere defense of violence.
The same court upheld the convictions of two members of a white supremacist group who admitted to punching and kicking protesters during the 2017 “Unite the Right” rally in Charlottesville, Virginia.
It is possible that federal prosecutors may decide not to file the charges, and if Trump is indicted in one of many other separate investigations, federal prosecutors could decide that justice would be served elsewhere.
Atlanta prosecutors recently opened a criminal investigation in Trump’s attempts to reverse his electoral defeat in Georgia, including a phone call on January 2 in which he asked that state’s secretary of state, Brad Raffensperger, to “find” enough votes to reverse Biden’s narrow victory.
And Manhattan district attorney Cyrus R. Vance Jr., is in the midst of an 18-month criminal grand jury investigation focusing in part on secret payments paid to women on Trump’s behalf, and whether Trump or his business has manipulated asset values - inflating them in some cases and minimizing them others – to obtain favorable loan terms and tax benefits.
Republican Senator Thom Tillis of North Carolina, who voted for absolution along with McConnell and 41 other Republicans, argued that since Trump is no longer in office, impeachment is not the right way to hold him accountable.
“The ultimate responsibility is through our criminal justice system, where political passions are verified and due process is mandatory. No president is above the law or immune from criminal prosecution, and that includes former President Trump. “
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Associated Press writers Jim Mustian and Michael R. Sisak in New York and Mark Sherman contributed to this report.
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Follow Colleen Long on Twitter at: https://twitter.com/ctlong1