The People versus Donald J. Trump

             The law moved slightly closer last week to holding the former president, Donald J. Trump, accountable for his role in inciting the Jan. 6 attack on the U.S. Capitol by a mob of Trump supporters. Trump had urged his supporters to assemble in Washington and then to march on the Capitol as Congress was about to certify Joe Biden’s election as president.

In a massive, 112-page ruling, U.S. District Court Judge Amit Mehta declined last week [Feb. 18] to dismiss the civil suits filed against Trump by eleven members of Congress and two U.S. Capitol police officers injured during the attack: James Blassingame and Sidney Hemby. The suits named other defendants as well, including Donald J. Trump Jr.; Trump’s personal attorney, Rudy Giuliani; and various organized militia groups—the Proud Boys, Oath Keepers, and Warboys— as well as the leader of the Proud Boys, Enrique Tarrio.

As Mehta explained (at pp. 3-4), the plaintiffs filed suit under a Reconstruction-era law known as the Ku Klux Klan Act of 1871 and codified at 42 U.S.C. §1985(1). The Reconstruction Congress enacted the law to combat the extralegal violence committed by white supremacists and vigilante groups like the Klan. But the statute is more than a civil rights law. While quoting the act’s operative paragraph, Mehta noted that the law “safeguards federal officials and employees against conspiratorial acts directed at preventing them from discharging their duties or accepting or holding office.”

The law, Mehta added, allows “a party injured by such a conspiracy to sue any coconspirator to recover damages.” The plaintiffs trace the alleged conspiracy back several months to the actions by Trump and his allies that “sowed seeds of doubt about the validity of the presidential election and promoted or condoned acts of violence by the President’s followers, all as part of a scheme to overturn the November 2020 presidential election.”

Mehta, born in India in 1971, was appointed to the federal bench by President Obama in 2014 after graduating from Georgetown University with a B.A. in political science and economics and from the University of Virginia School of Law. Showing a keen awareness of U.S. exceptionalism, Mehta noted in his opinion that Jan. 6 marked the first time ever that violence had marred the peaceful transition of power in U.S. history. “Violence and disruption happened in other countries, but not here,” he wrote. “This is the United States of America, and it could never happen to our democracy.”

Mehta flatly rejected Trump’s arguments that the First Amendment protected him from liability for his Jan. 6 speech to the mob or that he was protected from liability for his conduct as president. On the other hand, Mehta did dismiss counts against the younger Trump and Giuliani and declined to dismiss the counts against the organized militia groups. The wheels of justice grind slowly, of course, so Mehta’s ruling merely sets the stage for a full trial before a properly selected jury. Mehta validated the plaintiffs’ claims for intentional infliction of emotional distress and rejected Trump’s claims that damages were recoverable only for injury to person or property.

Meanwhile, the more delicate legal question of criminally prosecuting the former president remains pending in limbo before Attorney General Merrick Garland, who has been circumspect on the issue since taking office. On the other hand, a former federal prosecutor, Barbara McQuade, laid out the basis for prosecuting Trump last week in what she called a model prosecution memo of the sort that a federal prosecutor would prepare for a supervisor before seeking an indictment.

McQuade served as U.S. attorney for the eastern district of Michigan under appointment by Obama until she resigned after Trump took office in 2017. McQuade, who appears on MSNBC as a legal analyst, published the 9,100-word “prosecution memo” on the ostensibly nonpartisan web site Just Security. The memo details Trump’s conduct in greater detail than possible in this column.

Her bill of particulars includes, for example, Trump’s telephone call to Georgia’s chief election official to “find” the 11,000 votes needed to reverse Biden’s apparent victory in the Peach State. She also cites Trump’s call to legislators in states that Biden carried urging them to designate alternate slates of presidential electors to nullify Biden’s popular vote victories. And she points to Trump’s pressure on Vice President Mike Pence to exercise his non-existent authority to discard electoral votes for Biden from states where Trump and his allies disputed results.

The evidence, McQuade concludes, “is sufficient to obtain and sustain convictions of charges for conspiracy to defraud the United States and for obstruction of an official proceeding.” Among other offenses, McQuade also suggests that Trump himself violated the federal voter fraud statute by attempting to defraud voters of “a fair and impartially conducted election process.”

McQuade also acknowledges that a prosecutor would necessarily weigh prudential considerations before bringing charges—specifically, whether a prosecution “would serve a substantial federal interest.” Her answer is blunt and clear: “[T]he safety of our democracy remains vulnerable to future attacks unless the criminal justice system pronounces this plot for what it was – a crime against the United States of America.”

McQuade concedes that a possible acquittal could embolden Trump and his allies. But nevertheless, she concludes, “The only thing worse would be not charging him.”