Want To Prosecute Trump? It Will Require Proof Not Politics For A Viable Case

Below is my column in USA Today on the calls for criminal charges against former president Donald Trump and what is still missing from viable prosecutions.  In the meantime, civil lawsuits have been filed including one by Rep. Bennie Thompson alleging that Trump and others incited the riot on January 6th. Those civil lawsuits have the advantage a lower standard of proof than criminal prosecutions. If some cases can be sustained past motions to dismiss, they would also allow for discovery though those fights could draw out the litigation. However, Democrats may also be laying the foundation for Trump to claim vindication in defeating such cases in courts. Despite the assurance of the same legal experts of a strong case for prosecution, made-for-television cases do poorly in actual courts of law. What makes for good politics does not always make for good cases. However, bad cases can make for some really bad politics.

Here is the column:

With the acquittal of former President Donald Trump in the Senate, many are calling for criminal charges for everything from incitement to racketeering to bank fraud. Legal experts on CNN and MSNBC seemed to appear like crisis counselors after the acquittal to assure viewers that all was well because Trump can be clearly prosecuted and convicted.

The question is how serious a prosecution threat is Trump facing. The answer is that the basis for such charges has been wildly overstated and that, without additional evidence, Trump is not looking at a trip to the hoosegow any time soon. According to The Associated Press, the Justice Department is not pursuing Trump on the much discussed campaign finance allegations tied to payments to porn star Stormy Daniels.

So let’s look at the two major threats of prosecution and what it would take for a credible prosecution.

Criminal incitement

For weeks, the airwaves have been packed with legal experts assuring hosts that Trump clearly committed not just impeachable but criminal incitement. For example, Harvard professor Laurence Tribe (who previously declared a long list of impeachable or criminal violations) announced the core elements of the crime satisfied: “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government.”

Such proclamations do better with MSNBC than the DDC (United States District Court for the District of Columbia). The public statements of Trump alone would not make for a credible case for criminal incitement under the controlling case law.

Nevertheless, District of Columbia Attorney General Karl Racine garnered widespread acclaim by announcing soon after the Jan. 6 riot that he was investigating Trump for a possible incitement charge. Then nothing happened. That was strange given the insistence by legal experts that the crime was public and obvious on Jan. 6. Yet, more than a month have gone by without word of an interview for Trump, let alone a charge, on criminal incitement. Why?

The reason is that while the crime is not clear, the case law is. In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

Trump never called for violence and instead told his followers to go to the Capitol peacefully to “cheer” on those challenging the electoral votes. Such protests at capitals are common and, while reckless, Trump’s speech could as easily be interpreted as a call for protest rather than violence.

Notably, the Ku Klux Klan leader Clarence Brandenburg also referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court still overturned the conviction.

The court has consistently rejected the type of arguments by Tribe and other legal experts as a threat to free speech in our society. In Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In another case, NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.

Trump could also point to the timeline:

►He ended his speech at 1:10 p.m.

►The first rioter entered the U.S. Capitol at 2:12.

►According to CNN, Trump had a heated call around 2:20 with House Minority Leader Kevin McCarthy, who told him of the breach.

►Around 2:26, Trump mistakenly called Utah Sen. Mike Lee instead of Alabama Sen. Tommy Tuberville. After Lee gave Tuberville his phone, he reportedly said that Trump did not appear to realize the extent of the rioting in the building.

►At 2:38, Trump called for his followers to be peaceful and to support police. 

That would not make for a strong case for criminal incitement.

What would be needed? Prosecutors would need testimony showing that Trump knew of the high risk of violence and wanted it to occur. They would also seek evidence that Trump actively delayed deployment of reinforcements or sought to block efforts at preparation. What is clear is that the speech (and prior public statements) would not be enough to sustain a conviction.


Like Racine, Fulton County District Attorney Fani Willis has been lionized for opening criminal investigation into the phone call Trump made to Georgia Secretary of State Brad Raffensperger last month. Willis suggested that Trump’s pressuring of Raffensperger could constitute “solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration.” 

Again, the call itself does not clearly establish such crimes.

While often omitted in news accounts, the call was actually a settlement discussion between the Trump team and the Georgia team. There were a variety of lawyers present, not some backroom arm twisting. The Trump campaign alleged there were uncounted votes that surpassed the 11,779 deficit, and Trump asserted, “I just want to find 11,780 votes, which is one more than we have.”

Former prosecutor Daniel Goldman (who worked on the first Trump impeachment) tweeted that the smoking gun was the line by Trump, “ ‘It’s gonna be costly to you.’ I’ve charged extortion in mob cases with similar language.”

In reality, the line was, “It’s going to be very costly in many ways,” which is very different.

That is also a common point in a settlement negotiation. However, as a criminal defense attorney for 30 years, I would be eager to see Goldman’s prosecution of someone on such a statement in a case like this.

So what would Willis need? She would need to show pressure outside of a settlement discussion in which both sides are expected to state their positions and demands strongly. That could take the form of Trump making or supporting threats, or making promises to Raffensperger to get him to violate the law. The call itself is not a smoking gun of criminality.

That does not mean Trump does not face other threats. The most credible could come out of New York, where he is being investigated for bank and tax fraud predating his administration. While overreporting or underreporting assets is common in the real estate business, these tend to be crimes more easy to prosecute before a jury. It is also difficult to argue selective prosecution in such cases and prosecutors can portray missing or inaccurate reporting as cut-and-dried violations.

Despite the drumbeat for prosecution, such charges could easily backfire. If Trump were to beat the charges at trial or on appeal, it would be cited as vindication not just on the charges but on the second impeachment. The former president could end up like the character of Big Jule in “Guys and Dolls” proudly proclaiming, “33 arrests, no convictions.” Indeed, absent new transformative evidence, prosecuting Trump on the cases in Washington or Georgia could result in a resounding victory just before the 2024 election. They could make Big Jule’s record not just a criminal boast but a presidential slogan.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley




106 thoughts on “Want To Prosecute Trump? It Will Require Proof Not Politics For A Viable Case”

  1. Now that a bipartisan majority of House Representatives have voted to IMPEACH Trump and a bipartisan majority of Senators have voted to CONVICT Trump many patriotic and conservative tough-on-crime Americans are demanding action in criminal and civil courts. Meanwhile you continue to obsessively defend the indefensible. Your enablers must be paying you handsomely.

  2. Cherry-picking your facts again, Turley. Let’s start with the real date when Trump started the insurrection–the date Trump first greased up the faithful to believe that the election was going to be stolen–long before Election Day. He told them that they should be poll watchers because Democrats and the “deep state” were going to commit various types of fraud–letting people vote several times, not checking ID, etc…. He also claimed, falsely, that “the only way I can lose this election is if there is fraud”, ignoring polls showing he was going to lost to Biden and after a record-setting run of low approval ratings–never reaching even 50% in 4 years. All of this ignores his terrible performance–botched economy and pandemic, record trade deficit and tariff war with China that backfired. Then came Election Day, and your client took a victory lap in the wee hours of Wednesday, long before the votes were all counted, making a total fool of himself. When it became obvious that the polls were correct and that he had lost to Biden, then the real work started in earnest–recounts, re-recounts, signature match verifications, calls to Secretaries of State demanding that votes for Biden be taken away and awarded to Trump, demands that Barr investigate nonexistent fraud (calculated to give credibility to the Big Lie), and endless tweets that 2020 was the biggest hoax in electoral history. Then the lawsuits 60+ of them, all frivolous because they had NO factual support, and despite what Trumpsters have been told, courts DID listen to what Giuliani said was the evidence–they found no proof of widespread voter fraud. Minor glitches couldn’t overcome Biden’s 7 million vote advantage and they had no quantum of evidence that could change the outcome. That is the truth they don’t tell on Fox, which also has bloody hands. Next, there were the “Stop the Steal” vainglory tours, in which the disciples were told that they should come to Washington on January 6th to fight for their country and promised it was “going to be wild”. Then, he tried to bully Pence into refusing to accept the certified votes from the Electoral College, which he has no authority to do. But he did manage to get a few GOP losers to go along with it. He fired Barr when he wouldn’t go along with the Big Lie. He fired Krebs for publicly saying that 2020 was the most-secure election in US history. So, Turley, your “timeline” doesn’t work because it doesn’t begin to tell the story, the big picture of what fueled the fury of the Trump disciples on Jan.6th. You forgot that he told them if they didn’t “fight like hell” they wouldn’t have a country any more. And, how anyone can fail to see that this entire sad chapter of American history was about the futile efforts of a vain lying narcissist who cannot accept failure is beyond me.

    And, we all heard the Raffensberger call, which was recorded because of Trump’s history of lying. Raffensberger and the GA AG decided that they would only release the recording if Trump lied about trying to pressure Raffensberger into “finding him votes”, which he, of course, did. And your lame story about Trump’s campaign claiming there were over 111,000 uncounted votes is horsecrap and you know it. Raffensberger counted all of the votes, and Trump lost. Fair and square. We all heard the call, and that’s not what it was about, but that now appears to be the Turley-crafted cover story. And there is not a big difference between “gonna be costly to you” and “going to be very costly in many ways”, but I’m sure Turley thought up the story about this being an allegedly vast difference as part of his well-compensated work for the GOP. Turley: everyone knows Trump is a cheat and liar, and that he’s used to bullying people to do what he commands. That’s what he tried to do with Raffensberger. That call was NOT a “settlement negotiation”, either. What is there to “settle”? The GA Secretary of State accepts the ballots and is required to certify the vote totals, which he did. Trump has no authority to command him to do or not do anything. By law, Trump was allowed to demand multiple recounts and got them–he still lost. What was there to “settle”? Courts refused to intervene. The claim that this was just “settlement negotiations” is the biggest load of manure you’ve put out so far as a paid GOP mouthpiece, and obviously just more red meat for the deplorables, something to mitigate the blatant effort to cheat that was on the recording they heard? Raffensberger said there was nothing to be done, so what was there to settle? After all, Turley, you are the one who came up with the cover story those Republicans who wouldn’t stand up for America–alleged concerns about constitutionality.

    And, while you’re trying to make the case that Trump somehow “won” something with the second impeachment–57 UNITED STATES SENATORS VOTED TO CONVICT–more than enough if the Constitution didn’t require 2/3 majority, and if this had been an actual criminal trial, Trump would be a guest at the Graybar Hotel, which is where he belongs.

    1. American Last with Joe Biden is the way forward! Yeah!

      We all miss President Trump who worked endlessly FOR the country he loves unlike the corrupt old fool illegitimately occupying the Oval Office –who EVERYONE knows stole the election.

    2. Nasty ; Oh the height of hypocrisy lives large in you. Cherry picking your facts…hello pot calling kettle black.
      Typical one sided deranged libtard. Meanwhile we have a fake president awash in swamp corruption and gobs of chicom cash with a crack addled degenerate sex fiend son on the loose with pockets full of Chinese money. Your kind of family dynamic… figures.

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