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How likely is it that Trump will face criminal prosecution? – Latest News, Breaking News, Top News Headlines

In the last days of his presidency, Donald Trump may have been exposed to criminal prosecution after leaving the White House.

First, he repeatedly pressured a state official to “find” enough votes to reverse his defeat in Georgia in the 2020 election. Then, on Wednesday, he incited a violent mob to raid and loot the United States Capitol in a failed attempt to prevent Congress from counting electoral votes confirming President-elect Joe Biden’s victory. Five people were killed in the riots, including a Capitol police officer.

Even after repeatedly pushing the limits of presidential power and surviving an impeachment trial last year, his latest attempt to hold onto power through intimidation and insurrection has dramatically increased the odds that he will face a criminal investigation and possibly the first prosecution of a former president.

Legal experts say that only criminal prosecution could hold Trump accountable for his actions.

Although the Democratic-led House is heading for a possible second impeachment next week, the chances of a Trump conviction in the Senate – which would prevent him from running again – remain unclear and would almost certainly occur only after. of leaving office.

“The currently known facts warrant a criminal investigation by the president and others involved in inciting the uprising on Capitol Hill,” said Mary B. McCord, a former Justice Department official and Georgetown University law professor. “The filing of charges will depend on the results of that investigation and the considerations of the prosecutor’s discretion, but accountability is important in the face of such serious and dangerous abuses of power and privilege.”

But bringing criminal charges against a former US president would take the country into uncharted territory.

The law against “seditious conspiracy” criminalizes that “two or more persons […] anywhere within the jurisdiction of the United States conspire to overthrow, overthrow, or forcibly destroy the government […] or to prevent, obstruct or delay the execution of any law, to seize, take or possess any property of the United States ”. A conviction could result in fines or up to 20 years in prison.

Federal law also criminalizes fraudulent tampering with “ballot tabulation.” In an hour-long recorded phone call on January 2, Trump pressured Georgia Secretary of State Brad Raffensperger to “recalculate” the votes to make him the winner.

The Justice Department has long held that a president cannot face criminal prosecution while in office, because it would interfere with his duties. But constitutional experts say a former president has no such immunity.

“I think it’s clear that after you leave office, you can be tried for a crime you committed while you were president,” said David A. Strauss, professor of law at the University of Chicago. “The Constitution itself says that if you are accused, convicted and removed from office you can be prosecuted.”

The Supreme Court in the 1982 case of Nixon v. Fitzgerald ruled that a former president cannot be sued for damages for his official actions – in this case – for the firing of a Pentagon whistleblower. But the judges have not faced the question of whether a former president is protected from being charged with criminal conduct committed while in office.

However, until this month, many attorneys who were highly critical of Trump were opposed to prosecuting him for actions he had taken up to that point in his tenure, such as allegations that he obstructed justice in the investigation of special counsel Robert S. Mueller. III on Russian meddling in the 2016 elections. They feared those charges would be viewed by many as partisan and politically divisive.

But Trump’s use of the presidency to try to reverse his electoral defeat crossed the line for many.

“We have a long history, developed most recently in the wake of the Nixon administration, of keeping policy separate from federal law enforcement and not using the power of government to investigate and punish political opponents. That rule must be taken seriously, ”said Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive legal group in Washington. “But Trump’s anarchy is so blatant and threatening to our constitutional democracy that letting him escape responsibility could be even worse for the country.”

“A step in the right direction,” he said, “is Biden’s repeated commitment to keep the White House separate from impeachment decisions by the Justice Department.” The president-elect has said that this institution will have the independent ability to decide who will be prosecuted.

Randall Eliason, a former prosecutor who teaches at George Washington University, said he changed his mind about the decision to prosecute Trump in the past two weeks.

“In general, we should be very reluctant to suggest that a new administration prosecute an outgoing president for actions taken while he was in office. That is done routinely in some other countries, but it has never been done here, ”he added. “If we are going to break that precedent, there has to be a very compelling reason. I believe that Trump’s actions in inciting riots meet that standard. Not only are they outrageous and potentially criminal, but they have nothing to do with the legitimate exercise of their presidential powers. Here there is no risk that we will criminalize mere politics or party differences ”.

Biden may not share that opinion. On several occasions during the campaign, he said he wanted to look forward, not backward, and that he would leave any decision on whether to prosecute Trump to his attorney general. He was indifferent to the Democrats calls for a second impeachment.

This week, the president-elect appointed veteran Judge Merrick Garland, a highly respected former federal prosecutor, to head the Justice Department, which appears to make any final decisions on whether to prosecute the current president.

Representative Adam B. Schiff (D-Burbank), a former federal prosecutor who led the impeachment of the Democrats in 2020, explained that the incoming attorney general will face a complex decision. “You will have to examine evidence issues. And he will have to consider the seriousness of the offense and the need for the country to heal itself, ”he commented in an interview on Saturday.

Acting US Attorney in Washington, Trump-appointed Michael Sherwin, said his office is already preparing a criminal case surrounding Wednesday’s attack, starting with those that stormed the Capitol.

“Those are the people who obviously created violence, chaos and then left,” he told reporters earlier this week. “But yeah, we’re looking at all the actors here, okay? Not just the people who entered the building. All options are on the table ”.

Trump has reportedly considered granting himself a pardon for the crimes he committed. Legal scholars are divided on whether the president’s clemency power has that ability. Many predict that such a move would be counterproductive.

It would be perceived as an acceptance that you committed serious crimes that require a pardon. And the Justice Department is not likely to stand by and allow that precedent to remain unchallenged, because it could suggest that a future president with criminal tendencies could steal billions, sell national secrets, or even assassinate opponents and then walk away. with impunity.

In fact, if Trump forgives himself, federal prosecutors are more likely to charge him with a crime, some experts say. Doing so would then require the judges and ultimately the Supreme Court to decide whether the president has absolute power to commit crimes with impunity.

Noah Bierman, contributed to this article.

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