Las Vegas Review-Journal (Sunday)
Trump legal liability for riot under discussion
Incitement standard called high bar to clear
WASHINGTON — President Donald Trump’s top White House lawyer has repeatedly warned the president that he could be held responsible for inciting Wednesday’s riot at the Capitol, but the standard for legal liability is high under court decisions reaching back 50 years.
The admonitions from presidential counsel Pat Cipollone were delivered in part to prompt Trump to condemn the violence that was carried out in his name and acknowledge that he will leave office in less than two weeks, according to White House aides.
Trump did just that in a video from White House on Thursday. President-elect Joe Biden is to be inaugurated on Jan. 20.
But the promise of a wide-ranging, aggressive investigation by federal prosecutors into Wednesday’s events has raised the question of Trump’s role in the mayhem just as he faces the imminent loss of the protection from legal liability that the Oval Office has given him for the past four years.
The legal issue is whether Trump or any of the speakers at Wednesday’s 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 to march on the Capitol, even promising to go with them, though he didn’t in the end. He said “you’ll never take our country back with weakness.”
Trump’s words followed a speech by his personal lawyer, Rudy Giuliani, in which the former New York City mayor said, “Let’s have
trial by combat.”
Many in the crowd then set out for the Capitol, where a mob broke through police barriers, smashed windows and paraded through the halls, sending lawmakers into hiding.
A police officer died from injuries suffered during the siege, and a rioter was shot to death by Capitol Police. Three other people died after “medical emergencies” related to the breach.
Former federal prosecutor Randall
Eliason wrote in The Washington Post on Friday that Trump’s actions should be investigated.
Trump could be in violation of several federal laws, Eliason wrote, including prohibitions on aiding a rebellion, which has a maximum prison term of 10 years, and conspiring with others to prevent laws from being enforced, which calls for 20 years in prison.
Andrew Koppelman, a constitutional law professor at Northwestern University in Evanston, Illinois, said it would be difficult to prove that Trump intended for violence to ensue at the Capitol.
“It looks to me like Trump was culpably reckless. But it seems to me the Brandenburg standard requires intention,” Koppleman said.
That’s where context comes in, said Stanford University law professor Sirin Sinnar.
“Officials can always say that they intended peaceful protests, not violence. But the context here is significant, including the fact that the crowd was shouting ‘fight for Trump!’ during his speech and that right-wing militant groups like the Proud Boys in town for the protests were already fighting with police,” Sinnar wrote in an email.
In the atmosphere in which Trump was speaking Wednesday, Sinnar said, “The violence was entirely foreseeable.”
Federal judges have taken a hard line against the federal anti-riot law and its speech restrictions that prosecutors have tried to use in recent years.