When the Department of Justice took the position this week that former President Donald Trump acted improperly by urging his followers to attack Congress in 2021, prosecutors did more than open the door to a potential flood of civil lawsuits from police officers who were injured on Jan. 6.
What they actually did, according to legal scholars, is lay the groundwork for a potential criminal indictment against Trump for inciting the insurrection.
“If they took the position that the president was absolutely immune, then they wouldn’t be able to bring a criminal prosecution,” said one person familiar with the DOJ’s ongoing investigation who spoke on condition of anonymity.
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Legal scholars have come to the same conclusion.
“Had DOJ concluded that incitement unprotected by the First Amendment could nevertheless be within the president’s official functions, that could conceivably have impacted criminal charging decisions related to the same speech,” said Mary B. McCord, a former federal prosecutor now teaching at Georgetown University Law Center.
At the behest of the District of Columbia’s federal appellate court, the DOJ last week submitted a legal memo weighing in on a civil dispute by injured police officers. The department clarified that Trump’s speech, full of vitriol and fury, was not protected by presidential immunity, nor was it protected by his own free speech rights under the First Amendment.
“Such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States,” the DOJ wrote.
The department went out of its way to say it doesn’t necessarily support officer lawsuits against Trump, noting that it “expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints.” But by making clear that Trump’s speech was outside the norms of his office, it stripped the former president of virtually any defense he could make.
“If they’re saying it’s outside the scope of immunity of civil suits, and outside the scope of protected speech, there really isn’t anything else out there protecting Trump,” said one attorney, who asked to remain anonymous to avoid rattling DOJ leadership.
The two indictments Trump could face are for his incitement of the Jan. 6 riot—a federal crime—and his attempts to overturn the election results in Georgia, a state case there.
So far, the Justice Department has not indicated its legal analysis of the looming federal case against Trump, which concerns the effort his campaign led to undermine the electoral vote by Congress. However, its new legal memo draws a clear red line on his actions during the lead up to the actual attack on Congress.
Trump’s defense lawyer, Jesse Binnall, did not reply to a request for comment.
In the current lawsuit, leaving Trump without a viable defense could cost him millions. But the ongoing grand jury investigation in Washington could lead to the first criminal indictment of a former American head of state.
Trump’s legal team is already gearing up for a fight over allegations that he broke the law by inciting a riot. However, sources briefed on DOJ special counsel Jack Smith's criminal investigation say they’re more concerned about potential charges of conspiracy to defraud the United States. That separate matter deals with the Trump campaign’s scheme to use fake state electors to usurp the official congressional tally of real votes.
Still, these sources noted that Trump still faces potential criminal liability over the way he encouraged his MAGA devotees to march on the Capitol building on that early 2021 winter afternoon. The violent attack didn’t stop Congress from certifying the electoral college votes, and the U.S. Attorney’s Office in Washington has undertaken a historic effort to prosecute more than 985 insurrectionists for savagely beating police officers, stealing from congressional offices, and forcing their way into the Capitol.
Stephen Saltzburg, a law professor at George Washington University, pointed out that the ongoing federal crackdown on insurrectionists could be interpreted as a buildup to a powerful case against the man who encouraged them to do it.
That said, Saltzburg noted, a criminal charge for inciting the violence that took place on Jan. 6 would be a footnote compared to the difficulty of assembling a mob-like takedown. That takedown would center around a conspiracy case built upon Trump lying to the American public about nonexistent election fraud and trying to circumvent the democratic system itself.
The District of Columbia appellate court still has to decide whether the police officers’ lawsuit can go forward, Saltzburg noted. And if the court is unconvinced by the DOJ’s position, the civil lawsuit would fail—but so would any criminal indictment for incitement.
“A criminal case would have no chance because of the higher burden of proof,” Saltzburg said.
By decisively planting a flag for the first time since Trump’s full-scale attack on efforts to stay in power, the Justice Department has also surprisingly handed some effective ammunition to Fulton County District Attorney Fani Willis. Her special purpose grand jury recently advised her office to seek indictments over Trump’s concerted effort to overturn Georgia’s election results and his intimidating phone call to the top elections official there.
“It has profound implications for the Georgia case, and they are ominous for Trump,” said Norm Eisen, an attorney who previously advised the House Judiciary Committee and helped build the case for Trump’s first impeachment.
By clarifying that some actions by a sitting president fall far outside legal behavior, the Justice Department has narrowly carved out just enough protection to leave Trump in the open. If encouraging an attack on Congress isn’t legal, neither is a ploy to band together fake electors and pressure an elections official into finding “11,780” Trump votes that didn’t exist, Eisen said.
“Indeed, the Georgia conduct may be even more outrageous and unrelated to his official duties or his First Amendment rights than giving a speech on the Ellipse,” Eisen told The Daily Beast. “This brief is going to be utilized by the Fulton County prosecutor because it is so powerfully indicative of the only possible logical conclusion here: that an attempted coup cannot be part of the job description of a president under the United States Constitution.”
