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‘What Trump Knew’: Potential Criminal Charges in D.C. Sends Signal That Trump and Allies ‘Can’t Pardon Their Way Out’

Outgoing President Donald Trump delivers a speech on Jan. 6, shortly before his mob of supporters ran riot inside the U.S. Capitol.

President Donald Trump and his allies at the “Stop the Steal” rally that served as a lubricant to the deadly siege of the U.S. Capitol Complex last week face the prospect of a criminal investigation by Washington, D.C.’s top prosecutor.

D.C. Attorney General Karl Racine (D) revealed his probe during recent interviews with Fox News and MSNBC.

“I want to ask you going forward about any plans to investigate and possibly prosecute President Trump for inciting the mob last week or certainly Rudy Giuliani or Don Jr., ” Andrea Mitchell asked on Monday morning. “What about Don Jr., what about Rudy Giuliani and others, Mo Brooks, the member of Congress? Can they be prosecuted for inciting a riot?”

Racine responded:

Well let’s just say first, those were outrageous comments that those individuals, including the President of the United States made. Clearly the crowd was hyped up, juiced up, focused on the Capitol. Rather than calm them down, or at least emphasize the peaceful nature of what protests need to be, they really did encourage these folks and rile them up. Now whether that comes to a legal complaint, I think we’ve got to really dig in and look at all the facts. I know that I’m looking at a charge under the DC code of inciting violence and that would apply where there is a clear recognition that one’s incitement could lead to foreseeable violence. We still have more investigation to do, and that’s what we’re going to do. We’re going to work zealously and fully and let the facts lead to where they naturally go.”

During the pre-attack rally, Brooks told the audience that “American patriots” should “start taking down names and kicking ass.”

Similar rhetoric was employed by Trump’s longtime friend and lawyer.

“If we’re wrong, we will be made fools of,” Giuliani said. “But if we’re right, a lot of them will go to jail. So let’s have trial by combat.”

The 45th president himself capped off the event by calling on his supporters to march to the U.S. Capitol.

“We will stop the steal,” Trump said. “We’re going to walk down Pennsylvania Avenue, and we’re going to the Capitol. 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 that they need to take back our country.”

Experts say the possibility of incitement charges raises a slate of novel legal issues but could send the message that a series of blanket pardons won’t get the rally speakers off the hook here.

“Investigators/prosecutors/journalists will be looking closely at who Trump and his surrogates talked to and what they said in the days and hours leading up to the Capitol raid and afterward.” Tulane Law Professor Ross Garber posted via Twitter. “Key issues will be what Trump knew/intended/should have anticipated.”

Garber explained that jurisdictional issues may pose one such barrier, but that such prosecutions couldn’t be written off entirely.

“Normally federal prosecutors handle criminal prosecutions in D.C.,” Garber told Law&Crime. “I think AG Racine is trying to make the point that Trump and his allies can’t pardon their way out of any criminal exposure they might have. A prosecution of the president is a long-shot. But facts are still emerging.”

National security attorney Bradley P. Moss also held out the possibility of an investigation but noted that Trump’s famous tendency to mangle basic-and-complex thoughts might well inure to his benefit in the end.

“It is certainly appropriate to assess the entirety of facts for a possible incitement charge, but the rubber meeting the road will be whether the president’s incoherent rants can be sufficiently parsed in a way that takes it beyond constitutionally protected speech,” he told Law&Crime. “In this situation, the president’s inability to formulate a sentence properly may be what saves him.”

But even were high-profile prosecutions for speech to occur, the possibility of swift resolution isn’t likely in the cards, experts stress.

“Unless defendants refuse to waive their speedy trial rights (which defendants usually do so they have time to prepare) this is potentially dragging out for years in the more serious cases,” cautioned federal criminal defense attorney Tor Ekeland. “However, few criminal cases ever go to trial, as overburdened dockets and insufficient court funding coupled with the expense of mounting a proper defense have turned our criminal justice system into a plea grist mill. Over 98% of federal criminal cases ending in a plea and similar numbers in the states and DC. In this instance expect to see prosecutors go hard in a few high profile cases to set an example, with the majority of cases ending in deals for minor offenses and fading away.”

During his Monday morning MSNBC appearance, Racine made pains to clarify that his office had made no specific decisions—especially regarding the president—but was simply trying to keep all options on the table.

“Are you looking at the president’s role or is he immune because of the Office of Legal Counsel guidance that has been followed that the president cannot be prosecuted?” Mitchell asked.

“Sure, Andrea, as you know, the OLC opinion says the president can’t be prosecuted while the president is in office,” Racine clarified. “As it turns out, the president has about nine more days of office and, of course, the investigation is going to go on much beyond those nine days. It will be another legal question as to whether the president can be prosecuted after his term of office. I think the better weight of authority answers that question affirmatively. And I’m not targeting the President or anyone else. I’m just saying that the D.C. Office of the Attorney General—and I’m heartened that the U.S. Attorney also said the same thing—we’re going to follow the facts and we’re going to go exactly where the facts lead.”

The D.C. Attorney General’s office reiterated their cautious approach late Monday.

“The Office of the Attorney General for the District of Columbia is working closely with law enforcement partners to ensure all those who participated in or caused last week’s violence in the District are held accountable,” a spokesperson for the Office of the Attorney General told Law&Crime. “As the Attorney General said, he is not specifically targeting the President or anyone else, but our office will conduct a full investigation and let the facts and law determine what charges, if any, are to be brought against responsible individuals. We will decline to comment further on this ongoing investigation.”

[image via Tasos Katopodis/Getty Images]

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