Laurence Tribe: President or not, Trump can be made to pay for the Jan. 6 insurrection

Can an American president be held accountable to those he kills or injures in an effort to hold onto power? That question is far from hypothetical. As president, Donald Trump orchestrated the “Big Lie” that his electoral defeat was fraudulent, and then exploited the beliefs of many of his supporters in that lie to foment a deadly insurrection at the Capitol on Jan. 6.

It’s increasingly possible that the district attorney of Fulton County, Ga., will criminally prosecute Trump for strong-arming Georgia’s secretary of state to steal the election for him, and that the Department of Justice may pursue his potential violations of Civil War-era federal statutes criminalizing seditious conspiracies, insurrection and rebellion. But the politics of prosecuting a former president are enormously complex. Many will urge turning the page to avoid the appearance of a banana republic, where ousted leaders are routinely jailed by their successors.

Even successful criminal prosecution, however, would fail to compensate the myriad victims of Jan. 6. That’s where civil lawsuits, and their promise of compensatory and punitive damages, come into focus. But as plaintiffs begin to line up, many worry that this promise may ring hollow in light of the considerable obstacles to litigation, particularly against former presidents.

Those obstacles are real but not insurmountable. There are reasons to be optimistic that Mr. Trump and those with whom he conspired will be required to pay civil penalties in suits filed by members of Congress and their staffs, Capitol Police and their families, and others harmed in the attack on the Capitol. Rep. Eric Swalwell’s (D-Calif.) recently filed suit, alleging carefully tailored and well-founded claims under national and District of Columbia law, provides a promising roadmap.

Swalwell’s complaint makes two sets of claims. First, that Trump and co-conspirators, including Rep. Mo Brooks (R-Ala.) and attorney Rudy Giuliani, violated extant provisions of the 1871 Third Force Act, enacted to deter groups like the Klu Klux Klan from “conspir[ing] to prevent, by force, intimidation, or threat,” the discharge of official duties, such as Congress’s certification of a presidential election — and then, knowing of the conspiracy, “neglect[ing] or refus[ing]” to exercise their “power to prevent or aid in preventing” its harms. Second, that they violated provisions of D.C. law by inciting the riot, organizing it to target and injure political opponents, and setting into motion the entire chain of deadly events. Those claims should survive even the strongest available legal objections.

The first objection is most familiar, having been employed to defend Trump in his second impeachment trial. Recognizing the manifest weakness of the procedural point that Trump could not be tried by the Senate because he had left office, senators claimed he should be acquitted because he was exercising the right to speak freely when he addressed supporters on Jan. 6. Similar claims will surely be made in court.

But Swalwell’s federal claims implicate no First Amendment rights at all. They seek no damages for anyone’s speech but invoke it only as constitutionally unprotected evidence that the speakers engaged in conspiratorial action. “Speech” that evidences or is part of an unlawful agreement to act is obviously afforded no constitutional protection. So, too, it’s irrelevant that the actions Swalwell is suing Trump for failing to take would have required words on his part — performative words like “Stop!”

The same cannot be said of the D.C. law claims directly charging Trump with instigating the mob, to which the defendants will predictably argue that Trump didn’t “incite” violence in the strict sense required by Brandenburg v. Ohio. Most serious scholars disagree and have concluded that Trump’s statements to the crowd likely meet the Brandenburg standard. Facing a heated mass of supporters he knew from years of campaigning to be amenable to violence, Trump spoke in terms of aggression and implored the crowd to rush right over to the Capitol to “stop” the counting of electoral votes he claimed as illegitimate. His calls directed and triggered — within an hour — the “imminent lawless action” of trespass and physical violence, just as Brandenburg requires. In any event, many courts of appeal have permitted claims for foreseeable harm from negligent conduct even when it implicates First Amendment expression.

What of the special immunities that Nixon v. Fitzgerald recognized former presidents enjoy in discharging their official duties? As the Supreme Court reiterated vis-à-vis presidents Clinton and Trump, presidential immunities offer no blanket protection from personal liability — and Fitzgerald’s shield applies only “for acts within the outer perimeter of official responsibility.” Trump’s disinformation and fomentation were purely personal acts, performed for private political benefit, and cannot be contorted to fit the notion of discharging executive responsibilities.

In this regard, it is telling that Trump’s co-conspirators are charged with exactly the same conduct under the same statutory provisions, which make no distinction between purely private conduct and the conduct of public officials. To be sure, a uniquely objectionable facet of Trump’s refusal to mitigate the violence was his dereliction of duty as commander in chief, but the claim against him is far broader than that. It centers on his refusal, as the one who whipped up the mob, to urge restraint even as rioters breached the Capitol. His speech to supporters — or lack thereof — was entirely election-related, made in what federal ethics and campaign law recognize as the purely personal capacity of a candidate for federal office.

Indeed, all who invoked the First Amendment to defend Trump in his impeachment trial necessarily treated his statements as ones made solely in his capacity as Citizen Trump. If instead treated as made on the government’s behalf, they would not have enjoyed the requisite protection from government action. Even for mere government employees speaking on public matters, the Supreme Court has sharply circumscribed or completely axed First Amendment protections.

More significantly, it would turn the Constitution on its head to invoke it as a shield for executive branch instigation of violent rebellion against a coordinate branch. Orchestrating the overthrow of the Constitution’s basic structure, which rests on the peaceful transition of power through electoral will, cannot form part of any president’s job description. In Fitzgerald, the executive action of directing military reorganization was within the perimeter of Nixon’s presidential authority, notwithstanding his allegedly improper motive to punish a whistleblower. But no conceivable constitutional prerogative was being exercised here: Domestic violence, lawlessness and an attempted coup are all antithetical to the Constitution’s structure and spirit, whose preamble announces that it is established “in Order to … insure domestic Tranquility” — so much so that even if the election had been marred by fraud, and once the courts roundly rejected Trump’s legal challenges, the Constitution would not have blessed the stirring of a violent mob loyal to candidate over country. Our foundational commitment to the rule of law demands that election disputes be resolved by legal challenge, never by mob rule, intimidation or extrajudicial execution. 

Perhaps the firmest fixed star in our constitutional constellation is Chief Justice Marshall’s guarantee in Marbury v. Madison that, if we are to remain a “government of laws, not men,” then “for every right, there must be a remedy.” Trump whipped up a violent mob seeking to take the law into its own hands against Congress, against the electorate’s will, and in defiance of our constitutional rule of law — leaving five dead, countless bloodied and a nation permanently scarred. While justice for the country as a whole may prove elusive, Swalwell’s suit and those that follow can provide a measure of justice to some of Trump’s victims and, in doing so, reveal Marbury’s foundational promise to have endured the test of these last turbulent years.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard, the author of many books about the Constitution and the Court, and an accomplished Supreme Court advocate. Follow him on Twitter @tribelaw.