Will Trump Be Charged?

You’d have to be living under a rock to be completely unaware of what happened on January 6th, 2021. Regardless of your politics, cameras rolled as thousands of people stormed the Capital for the first time since The Burning of Washington on August 24th, 1814. In stark contrast, back in the early-1800’s, unlike January 6th of 2021, the attack was from a foreign power, the British, not from citizens from within the borders of our young, fledgling, and vulnerable country. At that time, James Madison, who was then president, was forced to flee the Capitol with his wife in haste, and to watch as the Capitol burned as well as the president’s house. It was a sad day in the early history of the United States — a day we hoped would never be repeated. We hoped…

Unlike with Madison in 1814 where the attack began as a biproduct of the War of 1812, in 2021, the attack on the Capitol began after then-President Donald Trump gave an inflammatory speech claiming the election was stolen from him. Despite the fact that he lost the popular vote by 4%, 51% for Biden-Harris and 47% for Trump-Pence, and despite Biden having won the electoral vote by 74 votes (not a close margin compared to Bush/Gore which was 4 electoral votes apart), Trump created a narrative that several states conspired to give the presidency to Biden. In fact, as the January 6th Congressional hearings in both Houses continue well into the rest of 2022, it is becoming more and more clear that Trump personally contacted election leaders and even governors demanding that they find votes or find fraud — whether or not there were votes or fraud to actually find. The evidence is all pointing to the fact that there was no fraud and no voter fabrication and/or suppression.

On January 6, 2021, the day that the election was to be certified with his Vice President, Mike Pence, sitting in the Capitol at the helm of that historical certification process, Trump held a public rally that was pre-planned and pre-meditated with a speech that was also written in advance. The rally was held in front of thousands of people and was broadcast on national television to millions. In his nearly 70 minutes speech, Trump spewed factual inaccuracies and falsities with zero evidence to support his claims. It was the start of the first time in American History that a sitting President refused to partake in a peaceful transition of power on the day the power was to transition. While not every president has been excited for the transition of power and a few have not stuck around for the inauguration of subsequent presidents (i.e. John Adams left town before Thomas Jefferson took office), never in America History has this happened — even in the most contentious elections in our history.

Nevertheless, despite it never happening before, it did, sadly, happen — and it all began at 8:17 am on the 6th of January, when Trump tweeted a proven falsity that “States want to correct their votes . . . based on irregularities and fraud, plus corrupt process . . . Pence has to . . . send it back to the States.” With this tweet, the tone is set for the rest of the day and for the President’s speech he is set to give in less than 4 hours to a crowd that hangs on his every word.

Trump then went on stage at roughly 12:00 pm to address the thousands that came at his request. Throughout the speech Trump goes off script on many occasions restating the falsities he tweeted about after the election and in the early morning hours of the 6th. During the speech he encourages the hordes in attendance to relocate to the Capitol to “make [their] voices heard.” As he is speaking, about 53 minutes into his speech a crowd of his supporters outside the Capitol began to swell around the police officers and barriers put in place in preparation for the rally. There are weapons in the crowd as well as a make-shift hangman’s noose and platform.

At roughly 1:10 pm, Trump ended his speech by saying, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore. So, let’s walk down Pennsylvania Avenue.” Note: Trump said “let’s,” as if he was joining them and encouraging them to go with him. Despite him saying he would join them, history would show he never went, however. Instead, he headed to the White House surrounded by security and his staff. At that very moment the police at the Capitol are calling for backup as the crowd grows by the second. The crowd disperses from Trump’s speech location and joins the swelling crowd at the Capitol. Nearly 35 minutes later, the protestors overwhelm the Capitol Police and force their way past them. At that exact moment, Pence is inside the Capitol in the process of attempting certify the election, a constitutional requirement.

Close to 2:13 pm, the Secret Service quickly and narrowly evacuate Pence (they got within 100 feet) as a number of the protestors storm inside the Capitol building breaking windows, kicking in doors, and destroying other property (some carrying weapons). The Senate is immediately evacuated. Many of the Senators barely escape the mob of people within the halls. Some of the people in the crowd are asking for Pence to be hanged on the spot. (Based on subsequently obtained information gleaned from the Congressional hearings, it appears as if Trump was made aware of the threat against Pence, live in the moment. Yet, Trump did nothing — refusing to act even amidst security in the White House hearing Secret Service officers of Pence begging for people to contact their families in case they were killed in the pandemonium.)

As all of this is unfolding, fully aware of the chaos taking place, Trump tweets at 2:24 pm calling into question Pence’s courage and claiming Pence didn’t do what was right for the Country and Constitution. Once again, he said there was fraud, without proof — further fueling the rhetoric and angry protestors. The House floor debate is immediately ended, and many members are given gas masks as they anxiously listen to the halls of the Capitol begin to overflow with rioters. As protestors stormed into the famous rotunda and got within feet of the House chamber. A member of Congress tweets his family telling him he loves them, fearing for his life.

A few minutes later Trump is making phone calls to Senators, still paying little attention to the mayhem and danger his Vice President was in. As the rioting continues, a single shot rings out as Ms. Babbitt falls to the ground, killed from a single gunshot wound. Despite that, Trump still does nothing. He was still refusing to give a statement; despite being begged by many in his cabinet (and his own family).

It wasn’t until 3:13 pm, 49 minutes later, Trump tweeted out for people to be “peaceful.” Not until 4:17 pm, another hour and 4 minutes later, Trump issues a pre-recorded, heavily edited video asking the protestors to go home — adlibbing a good portion of the video, against advisors’ advice. At 6:00 pm, astonishingly, Trump tweets that the rioters at the Capitol were “great patriots.”

*** To see a full timeline of events on 1/6/21, please click here. ***

This tweet caught many off guard. Sadly, the 1,200+ officers, 140 of which were injured during the conflict, that were there to protect the Capitol and all of those within those walls, would surely disagree with Trump’s tweet calling these people “patriots” — especially given 5 (at least) people lost their lives during the insurrection and their families are left picking up the pieces to this day. It is important to note here that not everyone involved in the breach and/or demonstration can be grouped as a whole in terms of their legal responsibilities and exposure. There were definitely people that were more culpable than others, no doubt, as the Justice Department as clearly determined through their selective prosecutions.

In the end, as a direct result of the insurrection, there have been 700+ arrests and successful prosecutions are continuously happening daily as a result — many people receiving lengthy prison sentences. The damage to the Capitol is estimated to possibly reach $30-million or more. Many, however, wonder why Trump has not been prosecuted or if he even can be, given his actions (and/or inactions) leading up to and including January 6th. Congress has sent out over 50 subpoenas during the investigation and hearings have been going on for a couple of weeks.

Yet, despite all of the information above, the question remains, “can Trump be prosecuted?” Legal scholars around the world are debating that very issue. Can he be prosecuted now? What if he ran again for President and won? Could he be prosecuted then? These are all questions that have never been answered. While many of these questions were asked during the end of Nixon’s presidency, they became moot after he resigned and President Ford took over and granted a full, unconditional pardon for his predecessor through Proclamation 4311.

What is becoming entirely clear is that Congress is tightening the proverbial noose around Trump. They have gotten to some of his inner circle, many of which have testified publicly and privately (aides, cabinet members, eye witnesses, etc.). Steve Bannon has even been found in contempt by Congress, despite his lack of cooperation — spurring others that had considered that course to reconsider. Even his own lawyer’s phone is being subpoenaed, scaring others around the President to reassess their own level of cooperation even if they feel they have executive privilege or other legal protections. As such, information is more free flowing now than it ever has been as these hearings ramp up and witnesses cooperate more and more.

Sullenly, information has been gathered from these Congressional hearings that baffles the mind. To name a few, Trump was seen calling numerous high ranking government officials to overturn the election from different swing States, refusing to quell the insurrection or give a public statement when it mattered in the moment, directing his aggression and explosive outbursts at the Secret Service, and denying requests to send in the National Guard to protect the Capitol and his Vice President in real time. Sadly, even his own family was begging him to act. The testimony shows Trump fought them all…even well into the next day, January 7th, 2021, when he was refusing to concede.

It is from all of this information gathering, testimony, and subpoenas (which are all still unfolding as of the writing of this blog), Attorney General Garland stated publicly on 7/7/22, that the Justice Department will pursue any and all charges he can against anyone, not excluding Trump (when specifically asked), who participated in the disruption of the transfer of power on 1/6/21. This clearly indicates Trump could and might be charged, regardless of when that decision is made by the Justice Department — now or in the future (even if after Trump is re-elected).

Specifically, it appears, it is looking like the Justice Department is looking into the following possible charges: (1) inciting a riot, (2) dereliction of duty, (3) interfering with an election based on a grand jury investigation in Georgia, (4) obstructing an official proceeding of Congress (interrupting the election certification process), (5) Defrauding the United States, and (6) Seditious conspiracy. Most of those allegations would bring felony charges and the potential for jail. Some legal scholars and commentators, including Norm Eisen of CNN, believe the ex-President is in “legal peril.” Couple that with the strong statements of AG Garland, and it appears it is becoming more and more possible that something may come of this, when it was originally thought a long shot (in all candor, it may still be).

Honestly, many scholars believe Trump’s prosecution is unlikely given the huge hurdles the Justice Department would have to surmount, the precedence it would set, and the political influence it would be clearly have. The implications could be huge, even catastrophic (depending on the perspective), and long lasting. It is possible if Trump is re-elected and subsequently indicted and found guilty – we could have a convicted felon in the Oval Office. That would be contrary to the Constitution, and new legal territory we’ve never seen before. Yet, no matter how this shakes out, whether it rises to a criminal level or not, or how America will take the news if it does (or doesn’t), there is no question a legal battle will ensue which will pave the way for future Presidents to come. Sadly, this is notoriously intriguing from a legal perspective, and the sky is the limit for how it might unfold. Let’s just hope it never happens again with a sitting or former President, Democrat or Republican alike.

For an unabashed look at what happened on 1/6/21, please take the time to watch HBO’s Four Hours at the Capital. It provides a complete look at how that day unfolded from both sides. It is equally terrifying and informative. Click here to be taken to it.

*** It is important to realize that this blog is not intended as a political statement or position of Banks & Brower, nor should it be considered an endorsement of criminal liability against Trump. Regardless of your politics or support of Trump, no one can argue that what happened on January 6th is anything other than a complete tragedy. People lost their lives and our Capitol was stained with blood that never should have been spilled. The core of our democracy requires the integrity of elections, no doubt, and a peaceful transition of power between administrations when that is achieved. Everyone can agree if we can’t rely on either, our nation has a very uncertain future ahead of her. At the end of the day, Trump is entitled to a fair and just investigation and he will be afforded the ability to defend any allegations if brought. If nothing is ever brought, we hope this is a learning lesson that words have consequences and lives hang in the balance — especially when spoken from the mouth of a sitting President. To quote Shakespeare, “uneasy is the head that wears a crown,” and our leaders should always consider that weight before they act or speak. ***