Assessing Trump's potential legal fallout for Capitol riot and Georgia election phone call

So how much potential legal trouble is Donald Trump facing now that he's out of the White House? Here is a close look at two files: the Capitol riot and Trump's phone call with Georgia's secretary of state about the election results.

First Amendment could protect Trump from criminal charges for Capitol riot, but lawsuits also possible

U.S. President Donald Trump fires up his supporters at a rally near the White House on Jan. 6 while lawmakers at the Capitol were in the process of certifying the results of the presidential election he lost. (Evan Vucci/The Associated Press)

Before former U.S. president Donald Trump lost the election last November, he was already facing a criminal investigation related to his financial dealings in New York, and lawsuits related to accusations of sexual misconduct and assault.

But since he lost the election, his actions in the days and weeks leading up to his last day in office have potentially escalated his legal troubles. While some legal experts deem it unlikely, it's possible the U.S. Justice Department could look into whether Trump bears any legal responsibility for the riot in the Capitol on Jan. 6 that resulted in the deaths of five people including one police officer.

That attack has already prompted at least one high-profile lawsuit, initiated by a Democratic congressman, Bennie Thompson of Mississippi, who claims Trump, his personal lawyer Rudy Giuliani and two far-right groups conspired to incite the riot.

Meanwhile, Trump faces legal scrutiny over his manoeuvres to overturn the election results in the state of Georgia. 

Here is a look at the potential legal fallout for Trump.

The Capitol riot

During the Senate impeachment trial, Democratic House managers argued that Trump's repeated and thoroughly debunked claims that widespread election fraud denied him re-election, and his comments specifically at the rally in Washington, D.C., on Jan. 6 in which he asked his supporters to "fight like hell," inflamed and incited the crowd to descend upon the Capitol with violent intentions as lawmakers were in the process of voting to certify the election.

Trump's words, according to Randall D. Eliason, a former federal prosecutor, could be in violation of federal laws, including prohibitions on aiding a rebellion, which carries a maximum prison term of 10 years, and conspiring with others to prevent laws from being enforced, which calls for 20 years in prison, Eliason wrote in a Washington Post article last month.

But proving Trump is guilty of such offences could be quite challenging, legal experts say.

When it comes to the accusation of incitement, for example, Trump may be protected under the First Amendment. A 1969 Supreme Court decision, Brandenburg vs. Ohio, found that prosecutors have to prove speech is directed at inciting "imminent lawless action" and it has to be likely to produce that action.

"I think his criminal culpability is very low," said Alan Rozenshtein, an associate professor of law at the University of Minnesota and former attorney adviser at the U.S. Department of Justice. 

Under U.S. law, the First Amendment, it is very, very, very difficult to bring a criminal charge based on speech."

WATCH | Senate Minority Leader Mitch McConnell highly critical of Trump despite vote to acquit:

Trump 'morally responsible' for Capitol attack, says McConnell

1 year ago
Duration 2:50
Mitch McConnell, the Senate's top Republican, excoriated Donald Trump on Saturday for the Jan. 6 attack on the U.S. Capitol, but defended his vote to acquit him at the impeachment trial.

Trump's defence would likely argue, as they did during the impeachment trial, that he certainly never meant for violence to ensue, and that he had told his supporters to march to Capitol Hill "peacefully and patriotically," said Garrett Epps, law professor emeritus at the University of Baltimore.

Paul Smith, a D.C.-based lawyer who has argued for liberal causes at the U.S. Supreme Court, said the Brandenburg case suggests Trump's speech was constitutionally protected.

"If he was there with a bullhorn in the outside yard of the Capitol and urging people to charge the windows and break them and take Congress hostage, in that situation he would be responsible for what the crowd did," Smith told Reuters last month.


The lawsuit filed this week by Rep. Bennie Thompson that names Trump and Giuliani also includes the Proud Boys, a far-right organization that was recently classified as a terrorist group in Canada, and the anti-government militia known as the Oath Keepers.

It claims the "insurrection was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and Proud Boys, all of whom shared a common goal of employing intimidation, harassment and threats to stop the certification of the electoral college."

John Banzhaf, a law professor at George Washington University, said the plaintiff would have to prove Trump conspired with these groups, which is a difficult task.

To prove conspiracy, he said, you don't necessarily have to show two people got together by phone or email or sat down together and said, "Hey, let's do this." But, in this case, you would have to show some kind of co-operative arrangement or effort between Trump and either one or both of the groups named in the lawsuit, he said.   

"That may be kind of difficult to prove."

Pursuing charges

Whether the Department of Justice pursues federal criminal action against Trump could ultimately be decided by incoming attorney general Merrick Garland.

Democrat Jamie Raskin, the lead impeachment manager from the House of Representatives, is shown addressing the U.S. Senate at the beginning of the second impeachment trial of Trump. (U.S. Senate TV/Reuters)

"It's going to be fascinating to see how the new Justice Department handles this. It's not an issue that any new administration particularly wants to have in its inbox," said Epps.

Rozenshtein said federal prosecutors are typically cautious and tend not to bring cases they're not very confident they can win, especially in incredibly high-profile and unprecedented situations like this. 

Wrongful death civil action

There is also the possibility Trump could face civil lawsuits from anyone injured in the Jan. 6 riot, and the family members of the slain police officer could sue the former president for wrongful death.

WATCH | Officers overpowered by rioters in newly released police audio:

Police audio reveals the growing tension as rioters breached the Capitol

1 year ago
Duration 2:22
Never-before-heard audio of police communications from Jan. 6 played at Trump's impeachment trial has police saying they are being hit by bottles and rocks, and that they have been overpowered.

"The trick on the plaintiff side is to prove causation. It is more likely than not that Trump, his actions, caused and contributed to these injuries. If he had not said X, then Y wouldn't have happened,said Virginia Vile Tehrani, a Maryland-based litigation attorney.

Success, however, will really depend on how the complaints are drafted, she said. 

"They will need to be very, very specific. They will need to make the right claims. They will need to plead that there is causation and here are the things that caused it."

WATCH | Vice-President Mike Pence is ushered from the Senate chamber during Jan. 6 riot:

Mike Pence is ushered to safety

1 year ago
Duration 0:50
In security video shown Wednesday during Donald Trump's impeachment trial, then-vice-president Mike Pence is seen being quickly taken from the Senate chamber on Jan. 6, as rioters breach the U.S. Capitol.

Trump could be protected from civil litigation based on a Supreme Court Case from 1982, Nixon vs. Fitzgerald, which found that a former president is entitled to absolute immunity from damages liability based on his official acts. 

"The question would then become, when he attended this rally ... was he acting within the scope of his duties as a president?" Banzhaf said. "Was he stepping outside it and acting more as an individual who wanted to remain in office? That would clearly be an issue."


Banzhaf said he does believe the former president is criminally culpable for his Jan. 2 phone call with Georgia Secretary of State Brad Raffensperger. During the conversation, a recording of which was obtained and published by the Washington Post, Trump repeated his discredited election fraud claims and asked Raffensperger to "find" enough votes to reverse Joe Biden's narrow victory in the state.

Trump also seemed to suggest Raffensperger and Ryan Germany, the secretary of state's legal counsel, could be criminally liable if they failed to find thousands of ballots in Fulton County that he claimed, without evidence, had been illegally destroyed.

A phone call between Georgia Secretary of State Brad Raffensperger and Trump on Jan. 2, a recording of which was released to the Washington Post, featured Trump repeatedly encouraging Raffensperger to change the state's results in the presidential election. (John Bazemore/The Associated Press)

In fact, Banzhaf has filed a complaint with Raffensperger alleging Trump broke state election laws by conspiring to interfere with elections, and accused him of solicitation and intentional interference with election duties.

Earlier this week, a Georgia prosecutor's office confirmed it has opened a criminal investigation into "attempts to influence" the outcome of last year's U.S. general election, although didn't name Trump specifically.

Clark Cunningham, a law professor at Georgia State University, said from his perspective, based on the transcript of the phone conversation alone, there is a potentially "open and shut" solicitation case. 

"We've got an audiotape and a transcript. And Trump's admitted that it's genuine," he said.

"A pattern that runs through the transcript, which is that he asks, he basically solicits election fraud and kind of sandwiches it in with threats."

However, as the CBC's Alexander Panetta reported last month, Trump's state of mind could be central to any such case, including whether he knowingly and wilfully encouraged election fraud.

Rick Hasen of the University of California, Irvine, a well-known expert on American election law, said prosecution could be a long shot because of the challenge in proving Trump actually thought he was committing a crime. 

And, as Epps pointed out, the question is also whether the local district attorney will want to prosecute a former president against what's likely to be the opposition of the state government.


Mark Gollom

Senior Reporter

Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.

With files from The Associated Press, Reuters