Trump: Should he be criminally prosecuted?
President Trump “should be criminally investigated” for inciting the Capitol riot, said Randall Eliason in The Washington Post. For weeks, he “whipped up” his far-right supporters with unfounded conspiracy theories about election fraud, then summoned them to Washington for his “Save America” rally, promising that it “will be wild.” At the rally, he urged thousands to march on the Capitol, telling them to show “strength” and “fight like hell” to keep Democrats from “fraudulently taking over our country.” This behavior “seems to fall comfortably” within the legal definition of several crimes, including “rebellion and insurrection,” “seditious conspiracy,” and “incitement of a riot.” Let’s also not forget his earlier phone call with Georgia Secretary of State Brad Raffensperger, said Ian Millhiser in Vox.com. A recording of the call shows that Trump pressured the election official “to find 11,780 votes,” or the exact number he’d need to win the state. He openly threatened Raffensperger, saying he could be charged with a crime if he didn’t support Trump’s bogus claims of fraud. These actions may have violated several state and federal laws.
As a former federal prosecutor, I can tell you that the bar for crimes of incitement is high—and Trump never reached it, said Jeffrey Scott Shapiro in The Wall Street Journal. He never called for violence in his speech—indeed, while urging his supporters to “fight harder,” he told them to march on the Capitol to, as he put it, “peacefully and patriotically make your voices heard.” In Brandenburg v. Ohio, the Supreme Court ruled that speech that advocates illegal conduct is protected unless it threatens to incite “imminent lawless action.” When the president spoke, “there was no ‘public disturbance,’ only a rally.”
Still, with Trump facing so many potential criminal charges after he leaves office, “a self-pardon may prove tempting,” said David Yaffe-Bellany in Bloomberg.com. But a self-pardon has “weak legal foundations” that fly in the face of the Founders’ intention to curb any public official’s “absolute power.” In fact, a self-pardon might “increase the chances” that Trump is prosecuted, said Benjamin Wittes in TheAtlantic.com. It would represent “a taunt” to the Justice Department, which would have to bring a case against him to challenge the absurd notion that every president can break laws with impunity, and then issue himself a “get-outof-jail-free card.” If that case reaches the Supreme Court, Trump will very likely lose.