How a New DOJ Memo Sets Up Two Potential Donald Trump Indictments

When the Justice Department made the point this week that former President Donald Trump acted improperly by urging his followers to attack Congress in 2021, prosecutors did more than open up. opportunity for a series of potential civil lawsuits from injured police officers on Jan. 1. 6.

According to legal scholars, what they actually did was lay the groundwork for a potential criminal indictment against Trump for inciting the uprising.

“If they think the president is completely immune, then they won’t be able to prosecute criminally,” said a person familiar with the DOJ’s ongoing investigation, who spoke on condition of anonymity.

Legal scholars have come to the same conclusion.

Mary B. McCord, a former federal prosecutor who now teaches at Georgetown University, said: “If the DOJ concludes that incitement is not protected by the First Amendment, it could still be within the functions. official presidential office, that could have influenced criminal charges decisions regarding the same speech. Law Center.

By order of the federal appeals court of the District of Columbia, the DOJ last week filed a legal memo Consider a civil dispute caused by injured police officers. The Department clarified that Trump’s cynical and angry speech is not protected by the president’s immunity, nor is it protected by his own First Amendment freedom of speech.

“Such impending incitement to personal violence would not be within the periphery of the Office of the President of the United States,” the DOJ wrote.

The department tried to say that it did not necessarily support the officer’s lawsuits against Trump, noting that it “expressed no position on that conclusion, or on the truth of the allegations in the complaint.” claim of the plaintiff.” But by making it clear that Trump’s speech fell outside the standards of his office, it stripped him of virtually any defense the former president could have made.

“If they say it’s outside the scope of immunity from civil lawsuits, and beyond the scope of protected speech, there’s really nothing else out there to protect Trump,” said one attorney. requested anonymity to avoid upsetting the DOJ. Leadership.

The two possible indictments Trump could face are inciting a January 6 riot—a federal crime—and attempting to overturn the election results in Georgia, a state case there.

So far, the Justice Department has not released its legal analysis of the upcoming federal lawsuit against Trump, related to the effort his campaign led to to sabotage the vote. electors of the National Assembly. However, its new legal memo outlines a clear red line about his actions in the time leading up to the actual attack on Congress.

Trump’s defense attorney, Jesse Binnall, did not respond to a request for comment.

In the current case, leaving Trump without a viable defense could cost him millions of dollars. But the ongoing grand jury investigation in Washington could lead to the first criminal indictment against a former US head of state.

Trump’s legal team is ready for a fight against allegations that he broke the law by inciting riots. However, sources briefed on DOJ special counsel Jack Smith’s criminal investigation say they are more concerned about allegations of conspiracy to defraud the United States. That separate issue concerns the Trump campaign’s plan to use fake state electors to usurp the real official congressional votes.

However, these sources note that Trump still faces potential criminal liability for the way he encouraged his MAGA devotees to march in front of the Capitol building on the early afternoon of winter 2021. there. The violent attack did not stop Congress from certifying the electoral college votes, and the United States Attorney’s Office in Washington made a historic effort to prosecute more than 985 insurgents for their brutally beat police officers, stole stuff from congressional offices and forced them into the office. Capital.

Stephen Saltzburg, a law professor at George Washington University, has shown that the ongoing federal crackdown on insurgents can be interpreted as the accumulation of a powerful lawsuit against the insurgents. encouraged them to do so.

That said, Saltzburg noted, a criminal charge of inciting violence that took place on January 6 would be a footnote compared to the difficulty of putting together a crowd-like takedown. That takedown would revolve around a conspiracy case based on Trump lying to the American public about the non-existence of election fraud and attempting to disrupt the democratic system itself.

The District of Columbia Court of Appeals still has to decide whether the police officers’ case can be continued, Saltzburg noted. And if the court is not convinced of the DOJ’s position, the civil case will fail—but so will any criminal indictment of solicitation.

“A criminal case won’t stand a chance because the burden of proof is higher,” Saltzburg said.

By deciding to plant a flag for the first time since Trump’s all-out assault on efforts to stay in power, the Justice Department also handed some surprisingly effective ammunition to Fulton County District Attorney Fani Willis. . Her special-purpose grand jury recently advised her office to seek indictments of Trump’s concerted effort to overturn Georgia’s election results and his terrifying phone call. he went to the top election official there.

“It has profound implications for the Georgia case and for us,” said Norm Eisen, a lawyer who previously advised the House Judiciary Committee and helped build the case for Trump’s first impeachment. bad omen for Trump.

By making it clear that some actions by a sitting president fall outside of legal conduct, the Justice Department has narrowly provided just enough protection to leave Trump open. If encouraging an attack on Congress is illegal, then the conspiracy to gather fake electors together and pressure an election official to find out “11,780” Trump votes doesn’t exist. , Eisen said.

Eisen told The Daily Beast: “Indeed, Georgia’s conduct may have been more outrageous and unrelated to his official duties or First Amendment rights than his statement about Ellipse. “This summary will be used by the Fulton County prosecutor because it strongly points to the only reasonable conclusion possible here: that a coup attempt cannot be part of his job description. a president under the Constitution of the United States.”

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