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. They were not authorized to publicly discuss private conversations and spoke on condition of anonymity.
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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.
“We want to avoid the risk of criminalizing political differences. But that understanding has nothing to do with what happened at the Capitol. It’s impossible to characterize Trump’s incitement of the riot as having anything to do with the legitimate exercise of his executive power — just the opposite,” Eliason wrote.
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. The mob that invaded the Capitol interfered with Congress' counting of the electoral votes and certification of Biden's victory.
Andrew Koppelman, a constitutional law professor at Northwestern University in Evanston, Illinois, said it would be difficult to prove 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.
He said Giuliani's exhortation sounded more like a metaphor than an incitement to violence. “It's like the word fight. It's often used as a metaphor. ‘Senator X is a fighter. He will fight for you,’" Koppelman 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. The federal appeals court in Virginia last year narrowed the Anti-Riot Act, with a maximum prison term of five years, because it swept up constitutionally protected speech. The court found that invalid parts of the law that encompassed speech tending to “encourage” or “promote” a riot, as well as speech “urging” others to riot or involving mere advocacy of violence.
The same court upheld the convictions of two members of a white supremacist group who admitted they punched and kicked counter-demonstrators during the 2017 “Unite the Right” rally in Charlottesville, Virginia.
In 2019, a federal trial judge in California struck down the entire anti-riot law, enacted in 1968, dismissing charges against members of the white supremacist Rise Above Movement. The Justice Department has appealed that ruling.