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. “
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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.
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.
To prove the conspiracy, you don’t necessarily have to show two people who have met or sat down by phone or email and said, “Hey, let’s do this.” In that case, however, you’d have to show some sort of collaborative agreement or effort between Trump and one or both of the groups named in the lawsuit, he said.
“That can be difficult to prove.”
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.
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“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.”
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Trump could be protected from civil lawsuits based on a 1982 Supreme Court case, Nixon v Fitzgerald, which found that a former president was entitled to absolute immunity from liability for damages because of his official acts.
“The question would then be, when did he attend this rally … was he acting in the context of his duties as President?” Said Banzhaf. “Did he step out and act more than one person who wanted to stay in office? That would clearly be a problem.”
Banzhaf said he believed the former president was a criminal offense for his phone call with Georgian Foreign Minister Brad Raffensperger on Jan. 2. During the conversation, the recording of which was received and published by the Washington Post, Trump reiterated his discredited electoral fraud claims and asked Raffensperger to “find” enough votes to undo Joe Biden’s narrow victory in the state.
Trump also appeared to be suggesting that Raffensperger and Ryan Germany, the state’s legal adviser, could face criminal charges if they did not find thousands of ballot papers in Fulton County that he claimed had been illegally destroyed with no evidence.
In a January 2 phone conversation between Georgian Secretary of State Brad Raffensperger and Trump, the record of which was released to the Washington Post, Trump repeatedly encouraged Raffensperger to change the state’s results in the presidential election. (John Bazemore / The Associated Press)
In fact, Banzhaf has filed a complaint with Raffensperger alleging that Trump violated electoral law by conspiring to meddle in elections and accusing him of inducing and deliberately violating electoral obligations.
Earlier this week, a Georgia prosecutor confirmed that it had opened a criminal investigation into “attempts to influence the outcome of last year’s US general election,” despite not specifically naming Trump.
Clark Cunningham, a law professor at Georgia State University, said from his perspective that there was a potentially “open and closed” commercial case based on the log of the phone call alone.
“We have a tape and a transcript. And Trump admitted it was real,” he said.
“A pattern that runs through the protocol, namely that he asks, he is basically asking for election fraud and inserts it with threats.”
As CBC’s Alexander Panetta reported last month, Trump’s state of mind could be central to such a case, including whether he knowingly and intentionally promoted electoral fraud.
Rick Hasen of the University of California at Irvine, a noted expert on American suffrage, said law enforcement could go a long way due to the challenge of proving that Trump actually believed he had committed a crime.
And as Epps emphasized, the question arises whether the local district attorney wants to prosecute a former president against the likely opposition of the state government.