United States: former president faces investigations and lawsuits

Jennifer VenisThursday 29 April 2021

Meanwhile, a full criminal investigation into the 6 January insurrection – in which Trump supporters stormed the Capitol building in Washington, DC – is ongoing. Republican Representative Liz Cheney has suggested that this ‘massive criminal investigation’ will look at ‘everyone who was involved’, and that ‘people will want to know what the president was doing’.

House Speaker Nancy Pelosi has proposed a 9/11-style commission into the attack. In an effort to establish bipartisan support, in mid-April she reportedly put forward an alternative plan to create an independent panel – comprised of equal numbers of Democrats and Republicans – to examine the Capitol assault.

In mid-March, the office of the Secretary of State of Georgia announced an investigation into attempts made to overturn the state’s election results, including a call Trump made to the Secretary himself, Brad Raffensperger. The call was leaked in early January, and Trump can be heard telling Raffensperger he needed to ‘find’ nearly 12,000 votes to undo Biden’s win in the state.

Wade McMullen, Senior Vice President of Programs and Legal Strategy at Robert F Kennedy Human Rights, tells Global Insight, ‘all of these things should be investigated, and people should be held accountable. Trump has a long history of human rights abuses in the way he conducted his business and personal affairs. All of those things should be brought to light, and he and all those who were complicit in enabling him should be held accountable.’

The Biden administration will have to decide whether to pursue its own investigations into the former president for his conduct while in or out of office. In 2019, Biden said in a debate that he’d leave the decision as to whether to investigate Trump to his appointed Attorney-General, reinstating a division between politics and justice.

Also in 2019, Vice President Kamala Harris – then a candidate for the Democratic presidential nomination – said the Department of Justice would have ‘no choice’ but to investigate Trump once he’d left office.

Matt Kaiser is Vice-Chair of the IBA Criminal Law Committee and a partner at Kaiser Dillion in Washington, DC. He says ‘it would not be good if when presidents leave their political adversaries routinely prosecute them’.

But for McMullen, that should not be a barrier to justice. ‘I’m not sure the potential [future] abuse of systems of accountability should be the only driver of a decision on whether we hold somebody accountable,’ he says.

He adds, ‘if irrational forces on either side want to manipulate notions of accountability and traffic in false equivalencies, of course that further harms our political system. But just because we risk people being manipulative doesn’t mean that we should avoid accountability.’

For Kaiser, ‘the question is, is Trump’s conduct outside the normal range?’ He divides that conduct into three categories: the insurrection at the Capitol on 6 January, which Trump was impeached by the US House of Representatives for inciting; his conduct in office; and his conduct before taking office.

The Senate acquitted Trump of inciting the insurrection in mid-February, but some of those who voted to acquit Trump due to qualms about the Senate trying a former official did suggest Trump could be held accountable through other means.

Kaiser is representing Representative Eric Swalwell in a lawsuit against Trump. Representative Swalwell’s suit was filed in early March, and argues that Trump, among others, should be held liable for injuries and destruction caused by the Capitol riot that the suit claims they incited.

The complaint alleges Trump’s actions before and after the attack ‘made clear he poses a risk of inciting future political violence’. It relies on the Reconstruction-era Ku Klux Klan Act of 1871, under which it is a federal crime to use force, intimidation, or threat to infringe on people’s rights to vote, hold office, testify in court and serve on a jury.

In a statement, Trump spokesman Jason Miller said Swalwell is targeting ‘our greatest President with yet another witch hunt’, after ‘failing miserably with two impeachment hoaxes’.

In mid-February, the US House of Representatives’ House Homeland Security Chairman Representative Bennie Thompson and the National Association for the Advancement of Colored People filed a similar lawsuit, accusing Trump of inciting the deadly insurrection and conspiring to prevent Congress from formally certifying Biden’s victory.

Miller’s statement responding to that suit cited Trump’s Senate acquittal and claimed ‘President Trump did not plan, produce or organize the Jan. 6th rally on the Ellipse’ and ‘did not incite or conspire to incite any violence at the Capitol on January 6th’.

Accountability for other conduct while Trump was in office, Kaiser says, becomes politically complicated. ‘That’s an area where one should be extra cautious just because unless it’s a clear-cut violation of federal criminal law that is so outrageous it can’t stand without prosecution, the better decision is probably to not prosecute and not to set that precedent,’ he says. ‘Because we can’t be a country that routinely jails people when they lose elections.’

Conduct committed before Trump became president is different, particularly because most of the investigations have been at state level and not at the federal level. ‘It’s interesting because the politics change – Biden wouldn’t be responsible for this,’ says Kaiser. ‘It’s not one rival prosecuting the other. It is for conduct when he was a private citizen. It’s a political calculation for the Manhattan district attorney.’

Either way, Kaiser believes that a large swathe of the US population would not be inclined to believe anything that comes out of an investigation into Trump. As for healing divisions in the US, he’s pessimistic about any new facts coming out doing anything for the country in this respect.

Image: Shutterstock.com / Felix Lipov