Before former US President Donald Trump lost the election last November, he was facing criminal investigations into his financial dealings in New York and legal proceedings relating to allegations of sexual misconduct and assault.
But since he lost the election, his actions in the days and weeks leading up to his last day in office may have escalated his legal troubles. While some legal experts think this is unlikely, it is possible that the U.S. Department of Justice could investigate Trump’s legal responsibility for the Jan. 6 uprising in the Capitol that killed five people, including a police officer.
That attack has already led to at least one high profile lawsuit, initiated by a Mississippi Democratic Congressman Bennie Thompson, who claims Trump, his personal lawyer Rudy Giuliani, and two far-right groups conspired to instigate the insurgency.
In the meantime, Trump faces legal scrutiny of his maneuvers to reject the election results in the state of Georgia.
Here’s a look at the potential legal ramifications for Trump.
The Capitol Rebellion
During the impeachment trial of the Senate, Democratic House executives argued that Trump’s repeated and thoroughly debunked allegations that widespread electoral fraud prevented him from being re-elected, and his comments specifically at the January 6 rally in Washington, DC, at which he pleading “Fight as Hell” to his followers, ignited and incited the crowd to descend on the Capitol with violent intentions as lawmakers voted to confirm the election.
Randall D. Eliason, a former federal attorney, said Trump’s words could violate federal law, including bans on supporting a riot that carries a maximum 10-year sentence and conspiring with others to enforce the law Eliason wrote last month in a Washington Post article calling for 20 years in prison.
But proving that Trump is guilty of such crimes could be quite a challenge, according to legal experts.
For example, when it comes to allegations of incitement, Trump can be protected by the first amendment. A 1969 Brandenburg v Ohio Supreme Court ruling found that prosecutors must demonstrate that the speech is aimed at “imminent lawless action” and that those actions must likely be provoked.
“I think his criminal fault is very small,” said Alan Rozenshtein, associate professor of law at the University of Minnesota and former attorney with the US Department of Justice.
Under US law, the First Amendment, it is very, very, very difficult to file a language-based criminal complaint. “
CLOCK | Mitch McConnell, chairman of the Senate minority, is extremely critical of Trump despite the vote on the acquittal:
Mitch McConnell, the Senate top Republican, sentenced Donald Trump on Saturday for attacking the U.S. Capitol on January 6, but defended his vote to acquit him on impeachment. 2:49
Trump’s defense would likely argue, as they did during the impeachment process, that he certainly had never intended violence to occur and that he said that he had told his supporters to march “peacefully and patriotically” to Capitol Hill Garrett Epps, Law Professor Emeritus at the University of Baltimore.
Paul Smith, a DC-based attorney who spoke out on liberal ends in the U.S. Supreme Court, said the Brandenburg case suggests that Trump’s speech was constitutionally protected.
“If he was there with a megaphone in the Capitol outer courtyard and told people to charge the windows and break them and take Congress hostage, in that situation he would be responsible for what the crowd did,” Smith said against Reuters last month.
conspiracy
The lawsuit, filed this week by Rep. Bennie Thompson, naming Trump and Giuliani also includes the Proud Boys, a far-right organization recently classified as a terrorist organization in Canada, and the anti-government militia known as the Oath Keepers .
It is alleged that the “insurrection was the result of a carefully crafted plan by Trump, Giuliani and extremist groups such as the Oath Keepers and Proud Boys, all of whom shared the common goal of using intimidation, harassment and threats to obtain electoral college certification to stop . “
John Banzhaf, a law professor at George Washington University, said the plaintiff had to prove that Trump conspired with these groups, which is a difficult task.
“That can be difficult to prove.”
Tracking fees
Whether the Justice Department will initiate criminal action against Trump could ultimately be decided by the new Attorney General Merrick Garland.
The House of Representatives senior impeachment manager, Democrat Jamie Raskin, is shown at the start of Trump’s second impeachment trial in the U.S. Senate. (US Senate TV / Reuters)
“It will be fascinating to see how the new Justice Department deals with it. It’s not an issue that a new government particularly wants in their inbox,” said Epps.
According to Rozenshtein, prosecutors tend to be cautious and tend not to bring cases where they are not very confident they can win, especially in incredibly high profile and unprecedented situations like this one.
Civil Lawsuit for False Death
There is also a possibility that Trump will face civil lawsuits from people injured in the Jan. 6 riot, and the family members of the murdered police officer could sue the former president for wrongful death.
CLOCK | Officials Overwhelmed by Rioters in Newly Released Police Audios:
Never-before-heard audio of the January 6 police communication played during Trump’s impeachment trial said police say they have been hit by bottles and stones and that they have been overwhelmed. 2:22
“The trick on the plaintiff’s side is to prove the cause. It is more than likely that Trump, his actions, caused and contributed to these injuries. If he hadn’t said X, Y wouldn’t have happened,” said Virginia Vile Teherani, a Maryland-based litigation attorney.
However, success will really depend on how the complaints are drafted, she said.
“You have to be very, very specific. You have to make the right claims. You have to rely on the fact that there is a cause and here are the things that caused it.”
CLOCK | Vice President Mike Pence is ushered out of the Senate Chamber during the January 6 riot:
