“There are potential state and federal crimes that he can be prosecuted for just for the things he’s done this past week and what’s troubling for him is he won’t have the immunity from prosecution that DOJ say says a sitting president has as of next Wednesday,” said Harry Sandick, a former federal prosecutor.
Sandick and other lawyers, however, say that as alarming as Trump’s recent statements have been, there are multiple hurdles for prosecutors to prove that the President violated election laws or those relating to incitement or sedition.
“The incitement ones are challenging if you only have evidence of his own words because they’re sufficiently ambiguous that it would be hard to prove beyond a reasonable doubt,” said Sandick.
“But the evidence is not only his own words. He organized this event, he invited [Rudy] Giuliani and Congressman [Mo] Brooks to speak. They made statements that were far more expressive than Trump’s own,” said Sandick. “If you add into the case the fact that there may have been some coordination with the rioters and other speakers, then prosecutors could build a case against Trump,” he added.
On Tuesday, Trump defended his remarks, saying lawyers vetted them and said they were “appropriate.” Speaking at Joint Base Andrews before departing for Texas, Trump falsely said those who’d analyzed his remarks had found no fault in them.
“It’s been analyzed,” he said. “People thought what I said was totally appropriate.”
“They’ve analyzed my speech, my words,” he continued. “Everybody to a T thought it was appropriate.”
Growing legal reckoning
Cary Dunne, general counsel for Vance’s office, told a judge in July that the subpoena delay has led to “continuing concerns about the potential loss of critical evidence and expiration of statutes of limitations.”
In October, a federal appeals court found the subpoena was not overly broad or issued in bad faith, but the Supreme Court has not ruled for three months on Trump’s request for a stay of the decision.
As the dispute has lingered in the courts, key investigative steps have been on hold, those people say say. Prosecutors can’t confront key witnesses without the documents or determine whether there is evidence that any laws have been broken, people familiar with the matter say.
Lawyers for the New York attorney general’s office, which has a lower burden of proof in civil investigations, have also dealt with delays. Eric Trump, the President’s son and the executive vice president of the Trump Organization, fought a subpoena for his testimony for four months until a judge ordered him to be deposed in October. One of Trump’s tax attorneys is also in a back and forth with the state over the disclosure of certain records.
Precedent of not prosecuting former presidents
Trump’s recent statements will present the Biden administration, which has made calls for unity, and his Justice Department with the dilemma of potentially prosecuting a former president.
Biden’s nominee for Attorney General, Judge Merrick Garland, has a reputation for even handedness. He also has experience with domestic terrorism cases having prosecuted the Oklahoma City bombers.
“There’s a long precedent of not prosecuting former presidents over policy differences,” said Elliot Williams, a CNN legal analyst and former federal prosecutor. “The difference is we’re not talking about policy difference here, and this is perhaps the most egregious conduct we’ve ever seen from a president while in office. If they have chargeable offenses there’s a really strong case to be made for pursuing them against President Trump.”
Some former prosecutors say that a lot of the conduct is morally reprehensible, but it isn’t clear if it will cross the line into violating the law. Investigators will need to prove the President intended to commit crimes, a high bar in criminal cases, not that he was encouraging lawful protests or truly believed that he won the election.
This weekend, in an interview with NPR, acting US attorney for Washington, DC, Michael Sherwin doubled down on his earlier statements that investigators are “looking” at any and all actors, including the President, Giuliani and others who revved up the crowd.
“Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol, all persons will be looked at,” Sherwin told NPR. “If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it,” he said.
Like the riot, the legal liability for Trump’s call to Georgia election officials will turn on his statements. Trump called the Georgia Secretary of State Brad Raffensperger, a Republican, imploring him to “find” 11,780 votes to give him the edge to overturn the election. It followed a call in December in which Trump told a Georgia elections investigator he would be a “national hero” if he would “find the fraud,” a source told CNN.
The calls have prompted letters and calls for state and federal investigations into Trump’s conduct. It isn’t clear if there is an active investigation. Former prosecutors say the outreach is worth federal prosecutors’ scrutiny even if Trump wasn’t successful because of the intimidation and threats the officials have faced.
If Trump escapes his presidency without any criminal charges, lawyers say, his last weeks in office have assured him a place in history.
“Even if prosecutors don’t end up charging him, the fact is that there’s a basis here for investigating multiple different federal crimes at once,” said Williams, adding, “there are a lot of mobsters who don’t even have that many criminal investigations open involving them at one time.”