Blog No 281. After Acquittal: What Now? (Part I)

INDEED, JUSTICE STORY SPECIFICALLY REMINDED THAT WHILE FORMER OFFICIALS WERE NOT ELIGIBLE FOR IMPEACHMENT OR CONVICTION, THEY WERE — AND THIS IS EXTREMELY IMPORTANT — STILL LIABLE TO BE TRIED AND PUNISHED IN THE ORDINARY TRIBUNALS OF JUSTICE. PUT ANOTHER WAY, IN THE LANGUAGE OF TODAY, PRESIDENT TRUMP IS STILL LIABLE FOR EVERYTHING HE DID WHILE HE WAS IN OFFICE, AS AN ORDINARY CITIZEN, UNLESS THE STATUTE OF LIMITATIONS HAS RUN, STILL LIABLE FOR EVERYTHING HE DID WHILE HE WAS IN OFFICE. DIDN’T GET AWAY WITH ANYTHING YET. YET. WE HAVE A CRIMINAL JUSTICE SYSTEM IN THIS COUNTRY. WE HAVE CIVIL LITIGATION. AND FORMER PRESIDENTS ARE NOT IMMUNE FROM BEING ACCOUNTABLE BY EITHER ONE.

Senate Minority Leader, Mitch McConnell, February 13, 2021

The acquittal of Donald Trump left uncertainty hanging in the air in two separate but related respects. The first is whether Trump will be held legally accountable for his actions on, and leading up to, January 6. The second is whether the impeachment proceeding, and the record it made, will significantly weaken Trump’s stranglehold on the Republican Party and, through that, his threat to American democracy. Part I of this blog will address Trump’s legal accountability and Part II will consider his continuing role on the American political stage.

McConnell’s blistering account of Trump’s culpability would have been even more striking–and far more significant–had it preceded a vote of guilty, and not followed a vote of not guilty. Made earlier, it might well have produced enough additional Republican votes to reach the required margin of two-thirds for a guilty verdict. McConnell justified his vote of not guilty on a claim that the Senate had no jurisdiction to convict a former president. While that claim had been rejected by most constitutional scholars, some had supported it. Whether McConnell’s bifurcated position reflected political calculation or constitutional conviction, or some combination of the two, may never be known definitively. In any case, the point is now moot, but McConnell’s pointed reference to potential criminal is clearly not.

Invoking the criminal justice system, McConnell spoke with some passion, adding language that did not appear in his prepared statement and repeating for emphasis that Trump has not gotten away with anything yet. Curiously, though, McConnell had slightly undermined that bold posture, by his earlier suggestion, “By the strict criminal standard, the President’s speech probably was not incitement.” Despite that reservation, there is clearly a firm basis for prosecuting Trump.

An earlier blog cited one of the statutes under which Trump might be prosecuted, 18 U.S. Code § 2383 – Rebellion or insurrection:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. 

Trump’s principal defense to a charge under Section 2383 would be his claim that he did not explicitly call for the use of force at the Capitol and that his statements at the rally were protected by his First Amendment right of free speech. That claim was a linchpin of Trump’s defense at the impeachment trial. In that situation, even the House Managers chose to emphasize that they were not charging Trump with a crime, and to argue that his free speech rights were irrelevant to an impeachment proceeding. Nevertheless, a free speech defense should be equally unavailing to Trump in a criminal prosecution.

The most pertinent Supreme Court authority is Brandenburg v. Ohio, which involved a speech at a Ku Klux Klan meeting. The Court held that the constitution did not permit a prosecution under an Ohio statute “which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate [unlawful] action.” In Brandenburg, there was no evidence that imminent action was called for or that any unlawful action had in fact ensued. Hence the Court could hold that the speech in question involved mere advocacy. On January 6, however, the action Trump explicitly called for—the march on the Capitol—was clearly imminent and its unlawful element was implicit and inevitable.

As Senator McConnell himself put it:

There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their President.

It could scarcely be clearer that Trump crossed the line between mere advocacy and incitement.

Trump cannot create an escape hatch out of a lone, fleeting reference to making the crowd’s voice heard peacefully. Such a defense worked once for Trump, but it cannot work here. In Nwanga v. Trump, the 6^th Circuit Court of Appeals cited Brandenburg in dismissing an action against Trump for “inciting a riot” based on the physical ejection of several protesters at a Trump rally after Trump had urged the crowd to deal with the protesters by saying “get ‘em out of here.” Apart from the fact that evicting a few protesters hardly amounted to a riot, the court emphasized that Trump had accompanied his suggestion of removal with the caution “but don’t hurt ‘em.” Moreover, Trump’s passing focus on the protesters was a minor incident of the rally. On January 6, however, the sole purpose of the rally and march was to prevent Congress from carrying out its constitutional duty to certify the vote of the Electoral College. That purpose was not going to be fulfilled by a peaceful assemblage in the manner of, say, the pro-life and pro-choice crowds that gather on occasion outside the Supreme Court. Both Trump and his raucous followers clearly knew that they needed much more on January 6. 

In addition to incitement, another provision of Section 2383 is applicable: the prohibition of giving aid and comfort to an insurrection. That is a rather apt description of Trump’s conduct as he viewed the progress of the Capitol insurrection from the safety of the White House. With rioters pounding at the doors of the House chamber, Trump brushed aside a desperate plea from Kevin McCarthy to step in with action to halt the violence (“Well, Kevin, I guess these people are more upset about the election than you are.”). He then tweeted messages conveying his solidarity with the protesters. As summarized in the New York Times:

In a video he posted on Twitter amid the violence, Mr. Trump offered the rioters reassurance rather than condemnation. He repeated his false claims about a stolen election that they invoked as their justification. While saying “we need peace” and urging them to go home, he added: “We love you; you’re very special.”

While the evidence presented in the impeachment proceeding was compelling, a criminal investigation would yield even more. Such an investigation would be far broader and more intensive than anything the House Managers were able to carry out. White House aides, for example, could be called before a grand jury to establish in greater detail Trump’s actions and demeanor as the insurrection was in progress. In addition, the grand jury would hear testimony about Trump’s conduct leading up to January 6: his plotting with Michael Flynn, Rudy Giuliani, Sidney Powell and others, the part Trump personally took in organizing the rally and the march on the Capitol, the role he planned for the Proud Boys, the Oath Keepers and other extremists known for violence, how exactly he expected his followers to delay or halt the certification of the vote by the Electoral College.

Still, despite the ample ground for a criminal investigation of Trump, it seems doubtful that the Biden administration will undertake one. While Biden is pursuing unity and bipartisanship in seeking to advance his legislative agenda, he is likely to see a prosecution of Trump as counterproductive to that effort. When Attorney General Merrick Garland is confirmed, he could authorize the investigation and prosecution of Trump, but it is unlikely that he would take such a momentous step without a nod from the president. Still, new developments could push matters in that direction. For example, there may be new disclosures of actions by Trump that would galvanize sentiment for prosecution. Such disclosures could arise in the course of the sprawling federal criminal investigation of the insurrection that is currently underway. The investigation is in its early stages, but many of those already charged have blamed Trump for their actions. On their own, such claims may not justify targeting Trump, but additional evidence may point inexorably toward him.

Finally, there has been increasing discussion of creating a 9/11 type of commission to investigate the January 6 event. Such a commission might be helpful in examining the safety and security failures in protecting the Capitol. It is, however, unlikely to be a useful vehicle for the more explosive task of assessing Trump’s responsibility. The extremely partisan atmosphere prevailing today is unlike anything seen at the time of the 9/11 Commission. Even if consensus findings were somehow achieved, it seems quite unlikely that they would be widely accepted by both Trump critics and supporters.

* * * * *

As readers were advised, I have been considering whether to rename this blog in light of the fact that, after November, I became a registered Democrat and could no longer claim to be even a “Republican In Name Only.” In the end, however, I decided to make no change in the name. It is, for better or worse, my brand and I am used to it. But the significance of the name will be historical rather than current. I have replaced the subtitle “A Haven for Republicans in Exile” with “Notes from a Cranky Moderate.” Republicans in exile will, of course, continue to receive a particularly warm welcome.

I have both sympathy and admiration for those Republicans who have seen Donald Trump for what he is but are determined to stay on to try to reclaim the Party of Lincoln. For my own part, however, I believe that I will be more comfortable in the Democratic Party, seeking to restrain the more radical impulses of its progressive wing and urging a bipartisan approach when possible.