Impeachment isn't the final word on Capitol riot for Trump
WASHINGTON — Donald Trump's acquittal at his second impeachment trial may not be the final word on whether he's to blame for the deadly Capitol riot. The next step for the former president could be the courts.
Now a private citizen, Trump is stripped of his protection from legal liability that the presidency gave him. That change in status is something that even Republicans who voted on Saturday to acquit of inciting the Jan. 6 attack are stressing as they urge Americans to move on from impeachment.
“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,” Senate Minority Leader Mitch McConnell of Kentucky said after that vote. He insisted that the court were a more appropriate venue to hold Trump accountable than a Senate trial.
“He didn't get away with anything yet,” McConnell said. “Yet.”
The insurrection at the Capitol, in which five people died, is just one of the legal cases shadowing Trump in the months after he was voted out of office. He also faces legal exposure in Georgia over an alleged pressure campaign on state election officials, and in Manhattan over hush-money payments and business deals.
But Trump's culpability under the law for inciting the riot is by no means clear-cut. The standard is high under court decisions reaching back 50 years. Trump could also be sued by victims, though he has some constitutional protections, including if he acted while carrying out the duties of president. Those cases would come down to his intent.
Legal scholars say a proper criminal investigation takes time, and there are at least five years on the statute of limitations to bring a federal case. New evidence is emerging every day.
“They're way too early in their investigation to know,” said Laurie Levenson, a law professor at Loyola Law School and former federal prosecutor .“The have arrested 200 people, they're pursuing hundreds more, all of those people could be potential witnesses because some have said `Trump made me do it'.”
What's not known, she said, is what Trump was doing during the time of the riot, and that could be the key. Impeachment didn't produce many answers. But federal investigators in a criminal inquiry have much more power to compel evidence through grand jury subpoenas.
“It's not an easy case, but that's only because what we know now, and that can change,” Levenson said.
The legal issue is whether Trump or any of the speakers at the rally near the White House that preceded the assault on the Capitol incited violence and whether they knew their words would have that effect. That's the standard the Supreme Court laid out in its 1969 decision in Brandenburg v. Ohio, which overturned the conviction of a Ku Klux Klan leader.
Trump urged the crowd on Jan. 6 to march on the Capitol, where Congress was meeting to affirm Joe Biden's presidential election, Trump even promised to go with his supporters, though he didn't in the end. “You'll never take our country back with weakness,” Trump said.
He also had spent weeks spinning up supporters over his increasingly combative language and false election claims urging them to “stop the steal.”
Trump' s impeachment lawyers said he didn't do anything illegal. Trump, in a statement after the acquittal, did not admit to any wrongdoing.
Federal prosecutors have said they are looking at all angles of the assault on the Capitol and whether t he violence had been incited. The attorney general for the District of Columbia, Karl Racine, has said that district prosecutors are considering whether to charge Trump under local law that criminalizes statements that motivate people to violence.