Legal problems could mount with Trump out of White House

Former President Donald Trump faces a mountain of legal problems now that he has left the White House for Mar-a-Lago. Trump no longer has the legal shield of the presidency and the Department of Justice to fend off civil and criminal lawsuits.

One pressing legal problem Trump faces stems from the "big lie" that the 2020 election was stolen. His repeated lies about "winning the election" encouraged pro-Trump supporters to storm the Capitol on Jan 6. Their common goal was to overturn the 2020 election by disrupting and preventing Congress from officially counting and certifying its results.

As the pro-Trump mob sacked the Capitol, Trump silently looked on for hours, despite pleas from lawmakers for help. The mob threatened to hang Vice President Mike Pence for his treachery in not awarding Trump the presidency. They hunted for Speaker Nancy Pelosi and terrorized other elected officials. Five people are dead and numerous people injured. Trump supporters now face a variety of federal criminal charges, including, but not limited to, vandalism (18 U.S.C. Section 1361), theft (18 U.S.C. Section 641), assault (18 U.S.C. Section 111), and murder (18 U.S.C. Section 1111).

Trump has been impeached by the House of Representatives for the incitement of insurrection, but his actions are apt to have other consequences. In 1861, Congress passed the seditious conspiracy statute (18 U.S.C. Section 2384) in response to the ongoing Civil War. Trump and other conspirators, such as Rudi Giuliani, who called for "trial by combat," may be criminally charged under this section. The risk of criminal prosecution for conspiracy is real. In 1925, Judge Learned Hand, for example, called conspiracy crimes the "darling of the prosecutor's nursery," because of their prosecution-friendly probability. Harrison v. United States, 7 F.2d 259 (2d Cir. 1925).

Like all forms of conspiracy, seditious conspiracy criminalizes the agreement to commit the crime, not the crime itself. There must be an agreement to forcibly resist some positive assertion of authority by the government. A criminal agreement may be proved by circumstantial evidence, because the agreement is rarely explicit. The conspirators must have a unity of purpose and the intent to achieve the common goal.

Section 2384 specifically prohibits two or more persons from conspiring by force "to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take or possess any property of the United States." During the Capitol assault, pro-Trump supporters yelled at Capitol police that "we are here because of your boss, Trump." Several supporters, who have been criminally charged, said they acted because the "president encouraged them to do so," or were "following the president's instructions."

In a 2020 memo to U.S. attorneys on violent rioting, Deputy Attorney General Jeffrey Rosen indicated that charges under Section 2384 were "potentially available" where a group conspired to (1) oppose by force the government; (2) by force to prevent, hinder, or delay the execution of any federal law; or (3) by force seize, take, or possess any federal property. Where a group has taken a federal courthouse by force, Rosen advises that U.S. attorneys "should consider a charge under Section 2384, among other potentially available charges." Prosecutors should now act on this advice.

Federal law also prohibits rebellion or insurrection. Anyone who "incites, sets foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof" is criminally liable (18 U.S.C. Section 2383). Although incitement of insurrection is the basis of the current House impeachment, it is not likely to be the primary basis of any criminal charges against Trump or his allies. Since it was enacted in 1862, the statute has been largely unused by prosecutors.

Doctor Martin Luther King's belief that "the arc of the moral universe is long, but it bends toward justice" gives one hope in the promise of equal justice. No person is above the law, including former presidents. 