Will Biden's Justice Department Charge Trump Over the Capitol Riot?

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President Trump’s potential legal exposure got even worse this week as fresh questions swirled about his possible criminal liability for Wednesday’s Capitol Hill riot.  

But fortunately for Trump, the next U.S. attorney general is widely seen as temperamentally inclined to let it all slide. And even if he weren’t, proving that Trump incited the riot would be a tall legal task. 

“At the very least, I think the Justice Department will need to open an investigation after the inauguration, and that investigation will look at Trump and Giuliani’s speeches,” said Jens David Ohlin, vice dean of Cornell Law School. 

President-elect Joe Biden’s decision to tap centrist Judge Merrick Garland for AG on Thursday was widely received as a sign the Biden team likely won’t slap Trump with federal criminal charges, no matter what he’s done. Biden has staked his presidency on national unity and reaching out to Republicans. And charging Trump could easily explode that message. 

Biden has said his attorney general will make the call on whether to charge Trump—and promised not to interfere. 

“Garland is a moderate, not a progressive, and very much an ‘establishment’ pick,” Ric Simmons, a professor at The Ohio State University Moritz College of Law, told VICE News. “It now seems even less likely that a Biden Justice Department would pursue criminal charges against Trump.” 

But Trump’s behavior also forces Garland into a difficult position. Charging the president would be seen in MAGA-world as political vengeance. Yet ignoring evidence against Trump would mean putting him above the law. It could also make Trump’s worst conduct fair game for future presidents, who would know they enjoy effective immunity from prosecution at the federal level.

Garland giving Trump a pass doesn’t mean he would get off scot-free—state and local officials could decide to charge him. The president is already facing investigations in New York State led by the Manhattan District Attorney Cy Vance and New York State Attorney General Letitia James. 

Trump was always facing legal scrutiny for potentially obstructing justice during the Russia investigation and campaign finance issues related to hush-money payments to women who claim they slept with him. But the irony is that his recent  actions at the rally behind the White House before the outraged mob moved on to sack Congress have made his presidency, and himself personally, more controversial than ever. 

From the stage, Trump urged his followers to “fight like hell.” Trump’s lawyer, Rudy Giuliani, yelled: “Let’s have trial by combat!” 

Trump’s own White House counsel, Pat Cipollone, warned the president that he risked legal exposure related to the riot, according to reports in The Wall Street Journal and other outlets.  

And the top federal prosecutor in D.C., Michael Sherwin, said Thursday that prosecutors plan to look at everyone involved in the riot.

A reporter asked Sherwin whether that group could include Trump, and Sherwin replied: “We are looking at all actors here, and anyone that had a role, if the evidence fits the element of a crime, they’re going to be charged,” according to The Washington Post. 

A spokesperson for the Department of Justice insisted that the Post story was “taken out of context” when asked about the exchange by VICE News on Thursday evening. But he didn’t respond to a follow-up request to explain what he meant.  

“The mode of liability would be incitement or instigation, categories that fall under the basic umbrella of complicity or aiding and abetting,” Ohlin told VICE News. “In this case, there’s a compelling case for incitement because the criminal conduct occurred so quickly after the speeches. Also, there is ample evidence to corroborate Trump’s mental state—which the jury is entitled to infer based on the other evidence in the case and the overall context.”

Yet others said that proving Trump’s intent would pose a significant challenge to prosecutors, and the fact that he also later denounced the violence—long after it was over—could be presented as evidence that he only wanted peaceful protest. 

“A criminal case against him for incitement … would be a very tough crime to prove,” said Patrick Cotter, a former prosecutor from the Eastern District of New York who helped jail the mafia boss John Gotti.

Simmons agreed that prosecuting Trump over Wednesday’s riot seems unlikely.

“I don't think it is feasible to charge Trump for those events,” Simmons said. “His speech is generally protected by the First Amendment, and while there is a "fighting words" exception, it is very narrow, and Trump's speech at the rally doesn’t seem to cross that line, since he never advocates violence.” 

Of course, this week’s events hardly represent the only legal questions Trump will face when he steps down from the presidency and loses his shield of protection from federal prosecution. 

Under Trump, the Justice Department frequently moved to protect Trump’s friends or punish his enemies. But Biden has specifically tasked Garland with restoring the department’s reputation. 

Garland is most famous for his role as former President Barack Obama’s pick for the Supreme Court who was denied his seat by GOP Senate Majority Leader Mitch McConnell for 11 months. The unprecedented delay effectively allowed McConnell to put Justice Neil Gorsuch, one of Trump's conservative picks, on the bench instead. 

Yet Garland was always supposed to be a choice that Republicans could live with. 

Garland has spent his entire adult career within the Washington, D.C., legal establishment. As a young federal prosecutor, he helped bring charges against domestic terrorist Timothy McVeigh. He went on to serve as chief judge on the U.S. Court of Appeals for the District of Columbia Circuit. 

Republicans have even praised Biden’s pick, including one of Trump’s closest collaborators, Sen. Lindsey Graham of South Carolina. Graham called Garland a “sound choice to be the next attorney general. He is a man of great character, integrity and tremendous competency in the law.”

Still, Garland may be tasked with making a totally unprecedented decision: whether to attempt to override a presidential self-pardon from Trump. 

Trump is reportedly considering handing himself a pardon on Jan. 19, the day before his term officially ends. 

Trump can’t pardon anyone for future actions, but he does have the power to pardon away charges that haven’t been filed yet, including those that might be based on his past behavior.

No president has ever had the sheer chutzpah to pardon himself before, so it’s not clear it would stand up in court. 

Testing a presidential self-pardon would require filing charges and then arguing over whether the pardon was legitimate, probably all the way up to the Supreme Court, legal experts said. 

But the irony is that even issuing himself a pardon would likely prompt prosecutors to want to challenge it.

“I think a self-pardon would actually make prosecutors more likely to bring charges, not less likely, because the Justice Department would want to have the judiciary declare that the President does not have this power,” Ohlin said.