With the acquittal of former President Donald Trump in the Senate, many are calling for criminal charges for everything from incitement to racketeering to bank fraud. Legal experts on CNN and MSNBC seemed to appear like crisis counselors after the acquittal to assure viewers that all was well because Trump can be clearly prosecuted and convicted.
The question is how serious a prosecution threat is Trump facing. The answer is that the basis for such charges has been wildly overstated and that, without additional evidence, Trump is not looking at a trip to the hoosegow any time soon. According to The Associated Press, the Justice Department is not pursuing Trump on the much discussed campaign finance allegations tied to payments to porn star Stormy Daniels.
So let’s look at the two major threats of prosecution and what it would take for a credible prosecution.
For weeks, the airwaves have been packed with legal experts assuring hosts that Trump clearly committed not just impeachable but criminal incitement. For example, Harvard professor Laurence Tribe (who previously declared a long list of impeachable or criminal violations) announced the core elements of the crime satisfied: “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government.”
Such proclamations do better with MSNBC than the DDC (United States District Court for the District of Columbia). The public statements of Trump alone would not make for a credible case for criminal incitement under the controlling case law.
Nevertheless, District of Columbia Attorney General Karl Racine garnered widespread acclaim by announcing soon after the Jan. 6 riot that he was investigating Trump for a possible incitement charge. Then nothing happened. That was strange given the insistence by legal experts that the crime was public and obvious on Jan. 6. Yet, more than a month have gone by without word of an interview for Trump, let alone a charge, on criminal incitement. Why?
The reason is that while the crime is not clear, the case law is. In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
Trump never called for violence and instead told his followers to go to the Capitol peacefully to “cheer” on those challenging the electoral votes. Such protests at capitals are common and, while reckless, Trump’s speech could as easily be interpreted as a call for protest rather than violence.
Notably, the Ku Klux Klan leader Clarence Brandenburg also referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court still overturned the conviction.
The court has consistently rejected the type of arguments by Tribe and other legal experts as a threat to free speech in our society. In Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In another case, NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.
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Trump could also point to the timeline:
►He ended his speech at 1:10 p.m.
►The first rioter entered the U.S. Capitol an hour later.
►According to CNN, Trump had a heated call with House Minority Leader Kevin McCarthy, who told him of the breach.
►Trump mistakenly called Utah Sen. Mike Lee instead of Alabama Sen. Tommy Tuberville. After Lee gave Tuberville his phone, he reportedly said that Trump did not appear to realize the extent of the rioting in the building.
►Just before 2:40 p.m., Trump called for his followers to be peaceful and to support police.
That would not make for a strong case for criminal incitement.
What would be needed? Prosecutors would need testimony showing that Trump knew of the high risk of violence and wanted it to occur. They would also seek evidence that Trump actively delayed deployment of reinforcements or sought to block efforts at preparation. What is clear is that the speech (and prior public statements) would not be enough to sustain a conviction.
Like Racine, Fulton County District Attorney Fani Willis has been lionized for opening criminal investigation into the phone call Trump made to Georgia Secretary of State Brad Raffensperger last month. Willis suggested that Trump’s pressuring of Raffensperger could constitute “solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration.”
Again, the call itself does not clearly establish such crimes.
While often omitted in news accounts, the call was actually a settlement discussion between the Trump team and the Georgia team. There were a variety of lawyers present, not some backroom arm twisting. The Trump campaign alleged there were uncounted votes that surpassed the 11,779 deficit, and Trump asserted, “I just want to find 11,780 votes, which is one more than we have.”
Former prosecutor Daniel Goldman (who worked on the first Trump impeachment) tweeted that the smoking gun was the line by Trump, “ ‘It’s gonna be costly to you.’ I’ve charged extortion in mob cases with similar language.”
In reality, the line was, “It’s going to be very costly in many ways,” which is very different.
That is also a common point in a settlement negotiation. However, as a criminal defense attorney for 30 years, I would be eager to see Goldman’s prosecution of someone on such a statement in a case like this.
So what would Willis need? She would need to show pressure outside of a settlement discussion in which both sides are expected to state their positions and demands strongly. That could take the form of Trump making or supporting threats, or making promises to Raffensperger to get him to violate the law. The call itself is not a smoking gun of criminality.
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That does not mean Trump does not face other threats. The most credible could come out of New York, where he is being investigated for bank and tax fraud predating his administration. While overreporting or underreporting assets is common in the real estate business, these tend to be crimes easy to prosecute before a jury. It is also difficult to argue selective prosecution in such cases.
Despite the drumbeat for prosecution, such charges could easily backfire. If Trump were to beat the charges at trial or on appeal, it would be cited as vindication not just on the charges but on the second impeachment. The former president could end up like the character of Big Jule in “Guys and Dolls” proudly proclaiming, “33 arrests, no convictions.” Indeed, absent new transformative evidence, prosecuting Trump on the cases in Washington or Georgia could result in a resounding victory just before the 2024 election. They could make Big Jule’s record not just a criminal boast but a presidential slogan.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley