Prosecuting Trump for the Capitol Riot

The riot at the Capitol on January 6 has led to many calls for President Trump to be removed from office. Regardless of whether that happens, there needs to be a criminal investigation into the events leading up to the riot, and in particular into Trump’s role in inciting the riot. Criminal charges against Trump and the others involved may well be appropriate.

I’ve previously resisted calls for criminal investigations of Trump once he leaves office. The risk of criminalizing policy differences requires that we be very cautious about prosecuting an outgoing president. Part of what led so many to recoil when Trump led chants of “lock her up” at his rallies was the specter of a president using his Justice Department to pursue political enemies. DOJ has already been severely damaged during the Trump administration, and a criminal investigation of Trump by the Biden DOJ will result in further charges of politicization. And most of Trump’s misconduct in office, however odious, was likely not criminal.

But Trump inciting a mob to storm the Capitol is on a whole different level. There is no possible way to  characterize Trump’s actions as the legitimate exercise of his presidential authority; no risk that we would be criminalizing mere political disputes. This was an assault on our most cherished institutions – on our democracy itself. It requires a thorough criminal investigation, followed by any appropriate indictments.

The Riot at the Capitol

On Wednesday, January 6, Congress convened for the formal count of the electoral college votes that would officially certify Joe Biden as the president-elect. In the weeks leading up to the certification, Trump and many of his supporters made repeated unfounded allegations of voter fraud and claimed the election had been “stolen” from him. They filed dozens of lawsuits around the country alleging problems with the election. These claims were uniformly rejected by both state and federal judges, including judges appointed by Trump.

In the days leading up to January 6, Trump exhorted his millions of followers to show up in D.C. to protest the “fraudulent” election. For example, on December 19 he Tweeted: “Big protest in D.C. on January 6. Be there, will be wild!” 

On January 6, Trump held a “Save America” rally at the White House, addressing the large crowd that had gathered in response to his pleas. In a speech lasting over an hour, Trump used incendiary language, repeatedly urging the crowd to “fight” to save the country. He exhorted them to march down Pennsylvania Avenue to “stop the steal” and prevent the Democrats from “fraudulently” taking over the country. Others spoke as well, including the president’s son Don Jr. and Trump’s personal attorney, Rudy Giuliani, who urged the crowd to settle the dispute over the election via “trial by combat.”

Following the rally the crowd marched  down Pennsylvania Avenue to the Capitol. They overwhelmed the Capitol Police and broke into the building — breaching barricades, scaling walls, and breaking down doors. Once inside they broke windows and destroyed other property. They threatened the safety of members of Congress, who were forced to cower behind locked doors. Some in the crowd were armed or carried explosive devices.  Some carried nooses and chanted slogans crying they should hang Mike Pence or assassinate Nancy Pelosi. Some carried zip ties, suggesting they might intend to take prisoners. One capitol police officer died after the rioters beat him in the head with a fire extinguisher. One rioter was shot and killed by the police.

It was six hours before law enforcement was able to re-take the building. In the days since the riot it has become clear that it’s very lucky more people were not injured or killed, including members of Congress or the vice president.

The Relevant Criminal Statutes

The seditious conspiracy  statute, 18 U.S.C. § 2384, makes it a crime for two or more persons to conspire to oppose the U.S. government by force, or “by force to prevent, hinder, or delay the execution of any law of the United States.” It provides a penalty of up to twenty years in prison.

The crime of rebellion or insurrection, 18 U.S.C. § 2383, provides a ten-year penalty for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It also provides for disqualification from holding public office in the future.

Under either of these statutes, the prosecution argument would be that Trump, through his  rally and conduct leading up to the rally, conspired with others to use force to delay the “execution of [a] law of the United States” – the electoral certification by Congress. In the words of the rioters that Trump adopted, he was trying to “stop the steal.” Through the same actions he also took part in a rebellion or insurrection against the authority of the United States and gave “aid or comfort” to those who stormed the Capitol.

Those who actually broke into the Capitol may face a number of other charges as well, including unlawful entry, destruction of property, assault, and homicide. Many of those people are currently being rounded up by law enforcement, having helpfully posted pictures of themselves committing the crimes on social media.

The First Amendment Defense

Trump’s most likely defense, one already raised by a number of legal commentators, is that his speech to the mob is protected by the First Amendment. He didn’t intend for the mob to riot, this defense would argue, he merely wanted them to protest outside the Capitol to try to influence the lawmakers inside. Accordingly, his address to the crowd was protected political speech and cannot form the basis of a prosecution.

The Supreme Court has held that speech intended to incite imminent violence is not protected by the First Amendment, but the category of speech that may be prosecuted is very narrow. In the leading case of Brandenburg v. Ohio, the Court held that speech may lawfully be criminalized only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Brandenburg  the Court threw out the conviction of a Ku Klux Klan member for a rally speech at a farm in Ohio. The speech contained derogatory language about Jews and African Americans and vague references to possible “revengeance” against the government if it did not stop oppressing whites, but called for no immediate action.

The Brandenburg analysis can be broken down as follows: 1) was the speech likely to produce lawless action; 2) was that action imminent; and 3) was that the speaker’s intent. Numbers one and two here seem pretty clear. The speech was not merely likely to produce lawless action, it did in fact produce lawless action. And unlike the speech in Brandenburg itself, Trump’s speech did call for imminent action: he directed the crowd to march to the Capitol as soon he was done. The primary legal issue then becomes whether what happened was really Trump’s intent.

Evidence of Trump’s Intent   

Intent in a criminal case is usually proven by circumstantial evidence. Trump’s speech is full of references to the need for the crowd to “fight like hell,” to be “strong,” and to stop the Democrats from “stealing” the election.  On the other hand, his defenders can point to the fact that he never explicitly called for the crowd to “storm the barricades,” and that he inserted a couple of references in the hour-plus long speech to “peaceful protest.” The defense would argue that the violent phrases were just colorful metaphors. Political speech, they would note, is full of references to “fighting” for various rights. That can’t be construed as a call for actual violence.

Commentators who defend the speech as protected by the First Amendment tend to focus on simply the speech itself, isolating a few lines and arguing they don’t amount to incitement. But Trump’s intent can’t be determined one way or another by looking only at the text. Context matters, and we can’t parse Trump’s intent by looking at the speech alone any more than we can parse the intent of the entire speech by looking at a few isolated passages.

Trump’s speech and intent first have to be evaluated in the context of the events leading up to the rally. It was preceded by weeks of Trump whipping up his supporters to help stop the “fraudulent” election. Right-wing social media was full of memes issued in response, urging his supporters to show up and “fight” for Trump.

The speech also has to be evaluated in the context of the rally as a whole. Others speaking at the rally used even more explicit violent language, such as Giuliani’s call for “trial by combat.” And the rally was taking place immediately prior to an actual march to the Capitol by the crowd. This is tied to the “imminence” issue – a similar speech using similar violent language directed at Congress but given at a campaign rally in Florida, for example, would not be nearly as menacing. Here the crowd was in a position to act immediately in response to Trump’s words — and did so.   

The nature of the crowd is also important when inferring Trump’s intent. He knows he’s not speaking to the Rotary Club here. Trump knows that his supporters routinely use the language of violence, insurrection, civil war, and “second amendment rights.” All outward signs would indicate this was a crowd stoked for violence – all they needed was their leader to give them a little nudge.

How exactly did Trump expect the protestors to “stop the steal” and prevent Congress from certifying Biden as the winner, if not by storming the Capitol to shut it down? Is it plausible that he believed the unruly mob before him was going to seek to “Save America” by peacefully linking arms outside the Capitol and singing Kum-ba-yah?

I think given Trump’s history and the overall context of the speech, the evidence of his intent is strong. But what really seals it for me is what he did once the riots started.

Trump’s Actions During the Riot

Although Trump promised the crowd he would be there with them as they marched to the Capitol, in fact he retreated to the White House to watch the developments on TV. There were reports from sources inside the White House that he expressed delight and excitement as he watched the riot unfold. He also was reportedly calling lawmakers, while the riot was going on, still trying to persuade them to delay the certification process or overturn the election.

There are also published reports that when the Mayor of D.C. called for reinforcements from the national guard, Trump resisted. (Because D.C. is not a state, the local national guard is controlled by the U.S. Department of Defense – so ultimately by Trump.) Vice president Pence was reportedly the one who finally ordered the D.C. national guard to respond, after a significant delay.

Finally, after allowing the riot to proceed for more than two hours and only after president-elect Biden had already called for the violence to cease, Trump released a tepid video statement to his supporters. He repeated the false claims that the election had been stolen. He told the rioters that he understood their pain. Remarkably, he said “we love you, you’re very special,” before saying it was time to go home.  Shortly thereafter he Tweeted:

These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!

These events are compelling evidence of Trump’s true intent. If he did not intend for the rioters to storm the Capitol, you would expect him to react with shock and horror and immediately try to stop it. Instead he watched excitedly on TV, delayed sending help, and continued working to try to stop Congress from acting while Congress itself was under attack. He praised his followers, told them he loved them, called them great patriots, and told them to be proud. Those are not the words of a man disappointed by what happened. That crowd did exactly what Trump wanted them to do.

I’m not suggesting that overcoming a First Amendment defense would be a slam-dunk. It’s possible to argue that he is just a terrible person who enjoyed the riot once it began but never really intended for it to happen. The First Amendment claim would clearly be the key legal issue to be resolved in any prosecution. But if I’m the prosecutor with this evidence, I like my case.

The Benefits of a Grand Jury Investigation

Launching a grand jury investigation is not the same as determining that criminal charges are appropriate. But a federal grand jury investigation would allow prosecutors to subpoena all relevant documents including emails, phone records, text messaging records, social media posts, and the like, to fully piece together all the events leading up to and during the riot. The grand jury could compel witnesses to testify under oath, such as witnesses to the president’s conduct and statements in the Oval Office while the riot was unfolding.

Such an investigation could uncover information that makes the evidence of Trump’s intent and role in the riot much clearer. We don’t know what is contained in the text messages or emails leading up to the riot, or what conversations witnesses could testify about. The grand jury could probe all of these details to see whether charges are appropriate. 

Any investigation also needs to explore the potential liability of others around president Trump, including others who spoke at his rally, as potential co-conspirators. The president’s prime enabler, Rudy Giuliani, who called for “trial by combat” after working for weeks to overturn the election, is certainly a potential target.

A conspiracy investigation should not be limited to events on the day of the riot. It would also make sense to explore other instances of misconduct, such as Trump’s recent call to Georgia election officials asking them to “find” the  votes they would need to overturn Biden’s victory in that state. As I wrote here, due to the heightened “willfulness” standard of intent for election offenses, prosecuting that call as a stand-alone election crime would be an uphill battle. But it would make sense to investigate that incident, and others, as potentially part of a conspiracy involving a pattern of overt acts seeking to overturn the lawful election results, culminating on January 6. 

There is a great deal about what happened on January 6 that we still need to learn, but it’s clear there is at least potential criminal conduct by Trump and others. Shortly after January 20, president Biden’s Department of Justice should convene a grand jury to investigate. We can’t say for certain at this point that criminal charges would be appropriate. But we can say for certain that a grand jury investigation is called for.

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The Looming Presidential Pardons

Despite the frivolous lawsuits and cries that the election was “stolen,” president Trump will leave office on January 20, 2021. Almost as certain as his departure is that he will grant a flurry of pardons on his way out the door, perhaps including trying to pardon himself. Given the breadth of the pardon power, there is little that can be done about that. Such pardons, even if controversial, will almost certainly be valid – with the possible exception of a self-pardon. But despite his anticipated best efforts, Trump will not be able to completely shield his family and colleagues – or himself – from future legal liability.

Source and Scope of the Pardon Power

Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This clause traces its roots to the power to grant clemency that English kings had for centuries. It’s an important part of our system of checks and balances, allowing the president to correct mistakes or perceived excesses in the justice system or simply to grant forgiveness in appropriate cases. Other than excluding impeachment, the Constitution contains no limits on this presidential power.

Although often referred to by the shorthand “pardon power,” this clause gives the president the ability to grant other forms of clemency as well, such as a commutation or reduction of sentence. For example, in the recent case of Roger Stone, president Trump commuted Stone’s 40-month sentence to keep him out of prison but did not grant him a full pardon. Similarly, president George W. Bush commuted the sentence of White House aide Scooter Libby for his role in the Valerie Plame/CIA leak case but refused to grant Libby a pardon, despite the vigorous objections of Libby’s boss, Dick Cheney.

A pardon represents presidential forgiveness for federal crimes that have been, or may have been, committed. It does not expunge any convictions or seal the recipient’s record, and the recipient still stands convicted. But a pardon removes collateral consequences that may flow from a conviction, such as restrictions on the right to own a firearm or the right to vote. A person whose sentence is commuted but who is not pardoned still bears those other consequences. That’s why someone who has merely had their sentence commuted might seek a full pardon later. Trump pardoned Scooter Libby a decade after Bush had refused to do so, and it seems likely Trump will pardon Stone now that the election is over.

Another difference is that a commutation or reduction of sentence can only come into play if the recipient has actually been convicted and sentenced to some form of punishment. A pardon, on the other hand, may be granted even if a person has not yet been convicted of anything – Gerald Ford’s pardon of Richard Nixon being the most famous example.

A presidential pardon may only cover crimes that have already been committed. A president cannot grant a sort of prospective immunity, authorizing someone to engage in future criminal acts by granting them a blanket pardon.

Most significantly for Trump, the president may only grant pardons for federal crimes. He cannot pardon anyone for state offenses.  If an individual receives a presidential pardon, a state generally is still free to prosecute that individual for the same acts if they also constitute state crimes.

Trump’s Use of the Pardon Power

Trump’s use of the pardon power has been controversial. For the most part, he has bypassed the system set up within the Department of Justice and the Office of the Pardon Attorney for reviewing petitions for clemency. He has been more likely to grant clemency based on appeals by a Fox News host, political ally, or other personal connection. His more controversial pardons include Libby, Arizona Sheriff Joe Arpaio, and conservative activist Dinesh D’Souza. He was roundly condemned, including by many in the military, for pardoning soldiers convicted of committing war crimes in Afghanistan, after their cause was promoted on Fox News. Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was serving a fourteen-year sentence after being convicted of multiple counts of corruption.

Former president Bill Clinton
Former president Bill Clinton

Pardons as a President Leaves Office

It’s not unusual for presidents to grant a number pardons as they are getting ready to leave office. Some of those pardons have been controversial. Bill Clinton pardoned fugitive financier Mark Rich on his last day in office. The FBI later investigated that pardon based on allegations it may have been granted in exchange for large donations to Democrats and the Clinton presidential library by Rich and his wife, although no criminal charges were ever filed. Clinton also pardoned his own brother, Roger, for a minor drug offense.

As he was about to leave office, George H.W. Bush pardoned six defendants about to go to trial over the Iran-Contra affair, including former defense secretary Casper Weinberger. Independent counsel Lawrence Walsh was outraged, suggesting the pardons might constitute obstruction of justice and that Bush acted to prevent information about his own involvement in the scandal from being revealed. (In an interesting historical twist, Bush’s move was supported by then-attorney general William Barr.)

So Trump certainly would not be the first president to raise some eyebrows with his parting pardons. But no previous president has ever had the potential to pardon so many of his own family members or close associates, including many who could potentially implicate the president himself in criminal activity. And no president has tried to pardon himself – although Nixon reportedly considered it.

Michael Flynn
Michael Flynn

Who Might Receive a Pardon?

The Mueller Defendants

The first likely recipients of a Trump pardon are those convicted as a result of the Mueller investigation. Trump, of course, has repeatedly attacked that investigation. His attorney general, William Barr, misled the public about Mueller’s report and has worked to undermine prosecutions that resulted, including by seeking to dismiss the Michael Flynn case and intervening in the sentencing of Roger Stone. It would be easy for Trump to justify these pardons by claiming they were all the result of the illegitimate Mueller “witch hunt.” Such pardons would have the added benefit for Trump of rewarding those who could potentially implicate him in wrongdoing and ensuring their continued loyalty.

Flynn seems like a prime candidate for such a pardon. Barr’s DOJ has tried to drop the charges against him after he pleaded guilty to lying to the FBI. The case remains mired in litigation over whether the trial judge must grant the government’s flawed motion to dismiss. By moving to drop the charges, Barr tried to free Flynn while allowing Trump to avoid taking the political heat of granting a pardon prior to the election. Now that the election is over, those political concerns are gone. Given the history, it frankly would be shocking if Trump did not pardon Flynn.

Roger Stone is another likely candidate. Trump commuted his sentence as he was about to report to jail, but now that the election is over look for Trump to bump that commutation up to a full pardon. Stone remained loyal by lying to Congress to protect Trump and refusing to cooperate even when prosecuted for those lies. Expect him to be further rewarded with a full pardon.

The outlook for other Mueller defendants is more cloudy. At times Trump has expressed sympathy for his former campaign manager Paul Manafort, who was convicted of money laundering and related financial crimes based on his work in Ukraine. Manafort pleaded guilty in a second case and agreed to cooperate with Mueller, but ended up lying to Mueller’s investigators. Trump and Manafort were reportedly never that close, but Trump might still pardon him just to take a shot at Mueller. The same is true for deputy campaign manager Rick Gates. Other lesser Russiagate players such as George Papadopoulos might be pardoned as well, again if for no other reason than to try to erase any results of the Mueller probe.

Other Former Insiders

Trump’s former personal attorney Michael Cohen almost certainly does not expect a pardon. Cohen was convicted of fraud and other charges in New York in a case that was spun off from the Mueller probe. His plea notably included a campaign finance charge for the payoff to Stormy Daniels that Cohen says was made at Trump’s direction. He potentially has a great deal of information that could implicate the president. But Cohen has completely turned against Trump, writing a harshly critical book and regularly criticizing him on cable news. He has said he doesn’t want a pardon, and he’s almost certainly going to get his wish.

Other former insiders have legal troubles of their own, but have also fallen out of Trump’s favor. For example, former presidential advisor Steve Bannon is now facing a federal fraud indictment for his involvement in a bogus fundraising scheme related to building Trump’s border wall. Bannon was once the consummate insider, but has also been critical of Trump since leaving the White House. Don’t expect him to receive any presidential clemency.

Donald Trump Jr.
Donald Trump Jr.

Trump Family Members

Up to this point we’ve been considering those who have already been charged or convicted. But Trump could also pardon individuals who have not yet been charged with anything, including members of his own family. For example, he could issue pardons for his son Don Jr. and son-in-law Jared Kushner for any crimes committed in connection with the 2016 presidential campaign and possible cooperation with Russia in its efforts to influence that campaign, or for any cover-up crimes related to the later investigations by Mueller and by Congress.

It’s not clear Don Jr. or Kushner want or need any such pardons; Mueller did not find that they had any criminal liability. But Mueller was not able to obtain all the information that he sought, and other facts could come to light under a new administration. Trump might be interested in issuing a sort of prophylactic pardon for any criminal acts related to Russia, the campaign, or the subsequent investigations, just as a precaution. On the other hand, he might conclude that issuing such pardons could make it sound like there was something to the “Russia hoax” after all.

Those who have not been charged or convicted could be reluctant to accept a pardon because they might think it would mean admitting they had done something  wrong. But as I discussed in this earlier post, the view that accepting a pardon means you are admitting  guilt is now generally discredited. For example, if a president were to pardon someone convicted of murder and then exonerated by DNA evidence, we clearly wouldn’t say that defendant is admitting he is guilty if he accepts the pardon. Trump family members and associates could easily claim they have done nothing wrong but will accept the pardons just to prevent a future, vindictive Democratic administration from pursuing baseless allegations.

Other Possible Pardons

There are other investigations that Trump could potentially try to head off by granting pardons. Not all of them are public, so it’s hard to know the full scope of what he could do here. For example, an investigation into financial misconduct related to the 2016 Trump inauguration may still be pending in the U.S. Attorney’s Office for the Southern District of New York. There could be other investigations pending within that office related to potential financial crimes by the Trump Organization. Presidential attorney Rudy Giuliani is reportedly still under investigation for some of his overseas business activities. To the extent there are such investigation still ongoing, Trump could short-circuit them by simply pardoning everyone who is under scrutiny.

Could Granting the Pardons Be a Crime?

It’s legally possible for granting a pardon to be a criminal act;  for example, if a president granted a pardon in exchange for a bribe. During the Mueller investigation there were allegations that Trump attorneys had dangled the possibility of pardons in front of witnesses to encourage them not to cooperate. As I wrote here, had that been established I think it could constitute bribery. Similarly, granting a pardon to head off an investigation into the president himself could potentially constitute obstruction of justice. But at this late stage, proving the requisite corrupt intent to make any of Trump’s parting pardons a potential crime would be extremely difficult.

Can Trump Pardon Himself?

The great unanswered question is whether Trump can pardon himself. Trump has claimed he has that right, but most legal experts disagree. The Office of Legal Counsel in Nixon’s Department of Justice opined that a president could not self-pardon. But no court has ever ruled on the question, and that OLC opinion is not binding on Trump. He could be the first president to test this legal proposition.  

For example, Trump could pardon himself for any obstruction of justice he may have committed during the Mueller investigation – probably his most clear-cut criminal exposure. If a Biden Department of Justice then tried to indict him for that obstruction – a big “if” — Trump would raise the pardon as a defense and move to dismiss. That would seem like a legal question destined to be decided by the Supreme Court.

Again, Trump may be reluctant to grant himself a pardon if he thinks it makes him look guilty. But he could easily rationalize it by saying he has done nothing wrong but needs to protect him from future unjustified “witch hunts.”

Trump and Pence
Mike Pence with President Trump

The Possible Pence Gambit

Trump could also engage in some more complicated gymnastics to seek to ensure that he receives a valid pardon. For example, he could resign the presidency prior to Biden’s inauguration. Mike Pence would then become president, with the power to pardon Trump.

Imagine this scenario: Over the next few weeks, Trump pardons his family members, associates, and anyone else who needs it, perhaps including Pence himself. Trump then resigns on the morning  of January 20, a few hours before Biden is inaugurated. Pence is sworn in and becomes president for the morning, and issues the pardon to Trump. It sounds crazy, but a lot of crazy things have happened over the past four years.

Trump could also act under the 25th Amendment to declare himself temporarily unable to perform the duties of president. That would make Pence the acting president until Trump declares himself fit again, and Pence could grant the pardon.  Of course, if Trump’s declaration was found to be a fabrication, that could call any such pardon into question.

It’s unclear whether Trump is interested in pardoning himself, or whether he would be willing to take the more dramatic step of resigning early to allow Pence to pardon him. It’s also unclear whether Pence, who has to think about his own political future, would agree to go along.

State Charges and Civil Cases

The most ominous aspect of all this for Trump is his inability to grant pardons for state charges. New York District Attorney Cyrus Vance has been conducting a grand jury investigation of Trump and the Trump Organization for the past couple of years and has been fighting to obtain Trump’s tax returns. The Supreme Court ruled in his favor last spring; the matter is now back before the Court and he is likely to prevail once again.  Vance has indicated that possible charges include not just the Stormy Daniels hush money payments but also bank fraud, insurance fraud, or tax fraud.

These potential state charges pose a real risk to Trump, and as president he can’t really do anything about them. If he does end up facing any criminal charges after he leaves office, New York state is the most likely source.

Trump also can’t pardon his way out of the many civil cases against him that may be pending or may be brought in the future, such as the defamation case by E. Jean Carroll, a woman who claims Trump sexually assaulted her. These can’t result in criminal convictions, of course, but could require Trump to pay damages or face other civil sanctions.

It will be very interesting to see what Trump does in the next couple of months. The expected flurry of pardons may turn out to be maddening and even shocking – another entry in the catalogue of outrages from this administration. But despite the awesome power of the presidency, Trump will be unable to shield himself and those around him from all potential legal consequences after he leaves office.

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