Jonathan P. Baird

Former President Donald Trump organized a coup to overthrow democracy in America. Although he was not ultimately successful, Trump tried to steal the last presidential election to seize power for himself. In the process, he turned a formerly conservative party into a party of extremists. The Republican Party now poses a fascist threat to democracy.

Trump’s actions during his presidential term crossed many legal and ethical lines. In addressing the question of his potential prosecution, it is challenging to limit the inquiry about his crimes. I choose to narrow it down to Trump’s actions in the period of time after his electoral defeat and through January 6, 2021.

Arguably, refusing to support a peaceful transition of power after losing the election and organizing an insurrection to topple democracy are his worst crimes.

While there is dispute about whether a sitting President can be indicted on criminal charges, there is broad agreement that there is no federal prohibition on charging a former President who committed crimes while in office.

The biggest obstacle to prosecution is the seeming lack of will to do it. No previous president has ever been indicted. Prosecutors would, no doubt, wonder about both the obstacles in making a case as well as their chances for securing a conviction.

Trump is slippery. This is someone who has been a party in 3,500 lawsuits in federal and state court. In his book Plaintiff in Chief, James D. Zirin writes:

“Trump’s litigation history shows him more often suing than sued. It was how he engaged with people. He would sue almost anyone for anything. He never collected a big judgment, but he wasn’t in it for the money. Trump enjoyed the possession of money and the things that money could buy. But more than money, his goal was the possession of supreme power, the joy of domination over those who crossed his path.”

Zirin goes on to say that Trump has rarely won in court. Typically, Trump settles or, if he was the plaintiff, he drops the case. In his business career before the presidency, Trump was charged with race and sex discrimination, sexual harassment, fraud, breach of trust, money laundering and defamation. Between 1991-2009, his hotel and casino businesses filed Chapter 11 bankruptcy four times.

At the start of his presidency, he paid $25 million to settle the Trump University case where he swindled thousands of students. He also paid $2 million for misusing his charitable foundation.

Lawsuits are a sport for Trump. They have often been more about getting headlines for himself than actually winning. Even when Trump loses, he will say he won. Sound familiar?

There is deep cynicism about the legal system protecting rich people, including sleazy rich people. Money talks. Still, I would suggest that Trump’s track record proves he should not be considered above the law. In the past, he has lost in court and he has had to pay or negotiate very expensive settlements.

Many seem to think Trump is some kind of teflon Superman as a litigant. History shows he is not. That is not to say he will not use scorched earth tactics that most reasonable lawyers and judges despise. That is his game. He will automatically label any investigation of his criminal activity a “witch hunt”.

It is legal error to think that a powerful case cannot be made against Trump for his actions in the last period of his presidency after the November 2020 election. A conviction could be obtained on multiple charges. Inciting an insurrection to prevent Congress and Vice-President Pence from counting electoral votes cannot possibly be kosher.

Laurence Tribe, the Harvard Law professor and constitutional law expert, has argued that Trump engaged in conspiracy to commit sedition, an extreme abuse of power. Trump was in cahoots with the Proud Boys, the Oath Keepers and others to prevent Congress and Vice President Pence from certifying an election winner.

Trump aided and abetted assault and battery against U.S. Capitol police officers. When he had the opportunity to call off attackers, he refused. There is a strong argument that his speech alone on January 6 incited a riot. Back on December 19, he had tweeted that people should come to a Washington DC on January 6. He said it would be “wild”.

The Trump 2020 campaign, along with its fundraising committees, made more than $3.5 million in direct payments to people and firms involved in the Washington DC protest on January 6. After taking the stage at noon on January 6, Trump spoke for an hour and fifteen minutes. Among other things, he said:

• “They rigged it like they’ve never rigged an election before.”
• “When you catch somebody in a fraud, you’re allowed to go by very different rules.”
• “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country any more.”
• “And we’re going to the capitol…But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness they need to take back our country.”

During his speech, the crowd started chanting “Fight like hell” and “Fight for Trump”. When Trump finished, the chants changed to “Storm the capitol”, “Invade the Capitol Building” and “Take the Capitol right now”.

While Trump is an expert at walking the line and creating plausible deniability, it is fair to say that many in the mob stormed the capitol at his direction. A number of the insurrectionists have said as much in defense of their own cases.

No case that might be brought is ironclad. There are two cases that have been brought by U.S. Capitol police officers. There are also the lawsuits filed by Congressman Eric Swalwell and Bennie Thompson, citing violation of the Ku Klux Klan Act.

I would also be remiss if I did not mention Trump’s election interference. Both his actions in Georgia pressing their Secretary of State to “find” votes and his pressure on Acting Attorney General Jeffrey Rosen to declare the election “corrupt” are actionable.

The Department of Justice could prosecute Trump. Part of saving democracy is sending a clear message that breaking the law in the Oval Office will be punished. Congress’ failure to follow through on the impeachments and remove Trump did not send the necessary message.

Not to prosecute sends a different message: that an out-of-control President faces no consequences. It almost guarantees future repetition of the type of misconduct that Trump exemplified.