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WASHINGTON (AP) – The acquittal of Donald Trump in his second impeachment trial This may not be the last word on whether he is responsible for the deadly Capitol riot. The next step for the former president could be the courts.
Now a private citizen, Trump is deprived of his protection from the legal liability the presidency has given him. This change in status is something that even Republicans who voted to acquit him on Saturday for instigating the Jan.6 attack are emphasizing as they urge Americans to drop impeachment.
“President Trump is still responsible for everything he did while in office, as an ordinary citizen, unless the statute of limitations has expired,” said Senate Minority Leader , Mitch McConnell of Kentucky, after that vote. He insisted that the courts were a more appropriate place to hold Trump to account than a Senate trial.
“He hasn’t done anything yet,” McConnell said. “Again.”
The insurgency on Capitol Hill, in which five people died, is just one of the legal affairs that have followed Trump in the months since his election. He also faces legal exposure in Georgia on an alleged lobbying campaign on state and Manhattan election officials on discreet payments and business transactions.
But Trump’s guilt under the law for inciting the riot is by no means clear. The standard is high in court rulings dating back 50 years. Trump could also be sued by victims, although he enjoys certain constitutional protections, especially if he acted in the line of duty as president. These cases would fall under his intention.
Lawyers say a proper criminal investigation takes time and there are at least five years of statute of limitations for bringing a federal action. New evidence is emerging every day.
“They are far too early in their investigation to know it,” said Laurie Levenson, professor of law at Loyola Law School and former federal prosecutor. “They’ve arrested 200 people, they’re chasing hundreds more, all of these people could be potential witnesses because some said ‘Trump made me do this.’
What we don’t know, she said, is what Trump was doing around the time of the riot, and that could be the key. Impeachment did not give many answers. But federal investigators carrying out a criminal investigation have a lot more power to demand evidence through grand jury summons.
“It’s not an easy case, but it’s only because what we know now, and that can change,” Levenson said.
The legal question is whether Trump or any of the speakers at the rally near the White House that preceded the attack on Capitol Hill incited violence and whether they knew their words would have that effect. This is the standard that the Supreme Court set out in its 1969 decision in Brandenburg v. Ohio, which overturned the conviction of a Ku Klux Klan leader.
Trump urged the crowd on Jan.6 to march on Capitol Hill, where Congress met to affirm Joe Biden’s presidential election, Trump even vowed to accompany his supporters, although he ultimately did not. . “You will never take back our country with weakness,” Trump said.
He had also spent weeks spinning supporters on his increasingly combative language and false election statements urging them to “stop the theft.”
Trump’s impeachment lawyers said he had done nothing illegal. Trump, in a statement after the acquittal, did not admit any wrongdoing.
Federal prosecutors said they were looking at all angles of the attack on the Capitol and whether the violence was instigated. District of Columbia Attorney General Karl Racine said district attorneys are considering indicting Trump under local law that criminalizes statements that motivate people to violence.
“Let people know that the attorney general’s office has a potential charge that it could use,” Racine told MSNBC last month. The charge would be a misdemeanor with a maximum penalty of six months in prison.
On January 6, Trump’s senior White House lawyer repeatedly warned Trump that he could be held responsible. This message was delivered in part to urge Trump to condemn the violence perpetrated on his behalf and to acknowledge that he would step down from office on January 20, during Biden’s inauguration. He left the White House that day.
Since then, many of those indicted in the riots say they were acting directly on Trump’s orders. Some have offered to testify. A phone call between Trump and Republican House leader Kevin McCarthy emerged during the impeachment trial in which McCarthy, as rioters stormed the Capitol, pleaded with Trump to call the crowd. Trump replied, “Well, Kevin, I guess these people are more upset than you are about the election.”
McCarthy’s call is important because it could indicate the intention, state of mind and knowledge of the actions of Trump’s rioters.
Court cases that attempt to prove incitement often run into the First Amendment. In recent years, federal judges have taken a hard line against riot law. The Virginia federal court of appeals restricted the riot law, with a maximum jail term of five years, because it swept away constitutionally protected speech. The court ruled invalid parts of the law that included speech tending to “encourage” or “promote” a riot, as well as speech “urging” others to riot or implying a simple plea for violence.
The same court upheld the convictions of two members of a white supremacist group who admitted hitting and kicking counter-protesters at the 2017 “Unite the Right” rally in Charlottesville, Virginia.
Federal prosecutors may decide not to lay charges, and if Trump is indicted in one of many other separate inquiries, federal prosecutors may decide justice will be served elsewhere.
Atlanta prosecutors recently opened a criminal investigation in Trump’s attempts to undo his electoral defeat in Georgia, including a phone call on January 2 in which he urged that state’s Secretary of State Brad Raffensperger to “find” enough votes to undo the narrow victory by Biden.
And Manhattan District Attorney Cyrus R. Vance Jr., is in the midst of an 18-month grand jury criminal investigation focused in part on the quiet payments made to women on Trump’s behalf, and whether Trump or his companies have manipulated the value of assets – inflating them in some cases and minimizing others – to benefit from advantageous loan conditions and tax advantages.
GOP Senator Thom Tillis of North Carolina, who voted for acquittal with McConnell and 41 other Republicans, argued that with Trump out of power, impeachment is not the right way to get him demand accountability.
“The ultimate responsibility lies with our criminal justice system where political passions are verified and due process is constitutionally prescribed. No president is above the law or immune from criminal prosecution, and that includes former President Trump.
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Associated Press editors Jim Mustian and Michael R. Sisak in New York City and Mark Sherman contributed to this report.
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Follow Colleen Long on Twitter at: https://twitter.com/ctlong1
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