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Assessing Trump’s Potential Legal Fallout for the Capitol Riot and Georgia Election Phone Call

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Before former US President Donald Trump lost the election last November, he was already facing a criminal investigation related to his financial dealings in New York City and lawsuits related to charges of sexual misconduct and assault. sexual.

But since losing the election, his actions in the days and weeks leading up to his last day in office have potentially exacerbated his legal problems. While some legal experts deem this unlikely, it is possible that the US Department of Justice may be able to examine whether Trump bears any legal responsibility for the January 6 Capitol riot that resulted in the deaths of five people, including a police officer.

The attack has already sparked at least one high-profile lawsuit, launched by Democratic Congressman Bennie Thompson of Mississippi, who claims Trump, his personal lawyer Rudy Giuliani and two far-right groups conspired to incite a riot. .

Meanwhile, Trump faces a close legal review of his moves to overturn the election results in the state of Georgia.

Here’s a look at the potential legal fallout for Trump.

The Capitolriot

During the Senate impeachment trial, Democratic House officials argued that Trump’s repeated and completely denied claims that widespread electoral fraud denied him for re-election, and his comments specifically at the rally in Washington , DC, on January 6, in which he called his supporters to hell, “ignited and prompted the crowd to descend on Capitol Hill with violent intentions as lawmakers voted to certify the election.

Trump’s words, according to Randall D. Eliason, a former federal prosecutor, could be in violation of federal laws, including the ban on assisting a rebellion, which carries a maximum jail term of 10 years, and to conspire with others to prevent law enforcement, which calls for 20 years in prison, Eliason wrote in a Washington Post article last month.

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But proving Trump guilty of such offenses could be baffling, legal experts say.

On the charge of incitement, for example, Trump may be protected under the First Amendment. A 1969 Supreme Court decision, Brandenburg v Ohio, concluded that prosecutors must prove that the speech is intended to incite. to “imminent anarchic action”. be likely to produce this action.

“I think his criminal culpability is very low,” said Alan Rozenshtein, associate professor of law at the University of Minnesota and former legal counsel in the US Department of Justice.

Under US law, the First Amendment, it is very, very, very difficult to lay a criminal charge based on speech. “

WATCH | Senate Minority Leader Michael McConnell strongly criticized Trump despite the acquittal vote:

Mitch McConnell, the top Republican in the Senate, excoriated Donald Trump on Saturday for the Jan.6 attack on the U.S. Capitol, but defended his vote to acquit him in the impeachment trial. 2:49

Trump’s defense would likely argue, as they did in the impeachment trial, that he certainly never wanted violence to ensue and that he told his supporters to march to Capitol Hill “peacefully. and patriotically, ”said Garrett Epps, professor of law emeritus at the University of Baltimore.

Paul Smith, a Washington-based lawyer who has argued for liberal cases in the U.S. Supreme Court, said the Brandenburg case suggests Trump’s speech was constitutionally protected.

“If he was there with a megaphone in the outside courtyard of the Capitol and urging people to load up the windows, smash them and take Congress hostage, in that situation he would be responsible for what the mob did.” Smith told Reuters last month.

Conspiracy

The lawsuit brought this week by Representative Bennie Thompson who names Trump and Giuliani also includes the Proud Boys, a far-right organization recently classified as a terrorist group in Canada, and the anti-government militia known as the Oath Keepers.

He claims that “the insurgency was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and the Proud Boys, who all shared a common goal of using intimidation, harassment and threats to stop the certification of the electoral college. “

John Banzhaf, a law professor at George Washington University, said the plaintiff would have to prove that Trump conspired with these groups, which is a difficult task.

To prove a conspiracy, he said, you don’t necessarily have to show two people got together over the phone or email or sit down together and say, “Hey, let’s do this.” But, in this case, you’ll have to show some sort of arrangement or cooperative effort between Trump and one or both of the groups named in the lawsuit, he said.

“It can be difficult to prove.”

Continuation of charges

Whether the Justice Department is pursuing federal criminal action against Trump could ultimately be decided by new Attorney General Merrick Garland.

Democrat Jamie Raskin, the top House impeachment official, addresses the US Senate at the start of Trump’s second impeachment trial. (US Senate Television / Reuters)

“It’s going to be fascinating to see how the new Justice Department handles this. It’s not a problem that a new administration particularly wants to have in their inbox,” Eps said.

Rozenshtein said federal prosecutors are generally cautious and tend not to carry cases that they are not very convinced they can win, especially in incredibly high-profile and unprecedented situations like this.

Civil action for wrongful death

It’s also possible that Trump could face civil lawsuits against anyone injured in the January 6 riot, and family members of the slain police officer could sue the former president for wrongful death.

WATCH | Officers overpowered by rioters in new police audio:

A never-before-seen sound of police communications from Jan. 6 aired during Trump’s impeachment trial told police they were being hit by bottles and stones and overpowered. 2:22

“The trick on the complainant’s side is to prove causation. It is more likely than not that Trump, his actions, caused and contributed to these injuries. If he hadn’t said X, then Y wouldn’t be. would not be produced, ”said Virginia Vile Tehrani, a Maryland-based litigation lawyer.

However, success will really depend on how the complaints are worded, she said.

“They will have to be very, very specific. They will have to make the right statements. They will have to argue that there is a causal link and these are the things that caused it.”

WATCH | Vice President Mike Pence is kicked out of the Senate Chamber in the January 6 riot:

In a security video released Wednesday during Donald Trump’s impeachment trial, then-Vice President Mike Pence was quickly removed from the Senate chamber on January 6 as rioters entered the U.S. Capitol. 0:49

Trump could be protected from civil lawsuits based on a 1982 Supreme Court case, Nixon v Fitzgerald, which found that a former president is entitled to absolute immunity from civil liability because of his official acts .

“The question would then become, when he attended this rally … was he acting within the scope of his duties as president?” Banzhaf said. “Was he going out of there and acting more as an individual who wanted to stay in office? That would clearly be a problem.”

Georgia

Banzhafs said he believed the former president was criminally guilty for his Jan. 2 phone call with Georgia Secretary of State Brad Raffensperger. During the conversation, a recording of which was obtained and released by the Washington Post, Trump repeated his discredited election fraud allegations and called on Raffensperger to “find” enough votes to undo Joe Biden’s narrow victory in the ‘State.

Trump also appeared to suggest that Raffensperger and Ryan Germany, the secretary of state’s legal adviser, could be criminally responsible if they did not find thousands of ballots in Fulton County that he said had been illegally destroyed. .

A phone call between Georgia Secretary of State Brad Raffensperger and Trump on January 2, a recording of which was published in the Washington Post, showed Trump repeatedly urging Raffensperger to change the state’s election results. presidential. (John Bazemore / The Associated Press)

In fact, Banzhaf filed a complaint with Raffensperger, alleging that Trump broke state election laws by conspiring to interfere with the election, and accused him of solicitation and intentional interference in election functions.

Earlier this week, a Georgia prosecutor’s office confirmed it had opened a criminal investigation into “attempts to influence” the outcome of last year’s U.S. general election, but did not specifically quote Trump.

Clark Cunningham, a law professor at Georgia State University, said that from his perspective, based on the transcript of the telephone conversation alone, there is a potentially “open and closed” solicitation file.

“We have an audio cassette and a transcript. And Trump admitted it was genuine,” he said.

“A model running through the transcript, which is what he’s asking, he’s basically asking for voter fraud and kind of sandwich with threats.”

However, as CBC’s Alexander Panetta reported last month, Trump’s mindset could be at the heart of any such case, including whether he knowingly and willfully encouraged voter fraud.

Rick Hasen of the University of California at Irvine, a well-known expert on US electoral law, said prosecutions could be lengthy due to the challenge of proving Trump actually believed he was committing a crime.

And, as Epps pointed out, the question is also whether the local district attorney will want to prosecute a former president against what is likely to be opposition from the state government.

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