A Department of Justice prosecutor believes that former President Donald Trump could be charged for his alleged role in the Capitol riots. The DOJ federal prosecutor, Michael Sherwin, made the bombshell assertion on 60 Minutes on Sunday.
“Has the role of former President Trump been part of your investigation?” Pelley asked.
Scott Pelley asks federal prosecutor Michael Sherwin if investigators are looking into President Trump’s role in January’s Capitol riot.
— 60 Minutes (@60Minutes) March 21, 2021
“It’s unequivocal that Trump was the magnet that brought the people to D.C. on the 6th,” replied Sherwin, making a spurious argument.
So does that mean that Trump is “criminally culpable for everything that happened during the siege, during the breach?” Pelley asked.
“We have plenty of people– we have soccer moms from Ohio that were arrested saying, ‘Well, I did this because my president said I had to take back our house.’ That moves the needle towards that direction,” Sherwin argued.
“Maybe the president is culpable for those actions,” the prosecutor insinuated. “But also, you see in the public record too, militia members saying, ‘You know what? We did this because Trump just talks a big game. He’s just all talk. We did what he wouldn’t do.'”
“In short, you have investigators looking into the president’s role?” asked Pelley.
“We have people looking at everything, correct,” Sherwin replied. “Everything’s being looked at.”
The news media has been pushing for Donald Trump’s prosecution for the Capitol riots since January 6th.
“Trump must be prosecuted,” the Week argued in January. “Trump can and must be prosecuted,” the Washington Post’s Jennifer Rubin opined. “Trump must be prosecuted, or we should just admit presidents are above the law,” Business Insider proclaimed.
“Lawyers inside the Washington, DC attorney general’s office are working to determine if it is legally viable to use district statutes to charge former President Donald Trump for his alleged role in the insurrection,” an ABC affiliate reported in January.
The door for prosecution was also seemingly left open by Mitch McConnell due to his remarks at Trump’s impeachment acquittal speech.
“President Trump is still liable for everything he did while in office,” he said. “He didn’t get away with anything yet. We have a criminal justice system in this country. We have civil litigation.”
However, the Supreme Court has already ruled on the matter of civil litigation against a sitting president. In a 5-4 decision, the Supreme Court upheld in Nixon v. Fitzgerald that a former president is entitled to “absolute immunity from liability for civil damages arising from any official action taken while in office.” It should be noted that this would also encompass legal arguments about criminal negligence.
Furthermore, a criminal case brought against Donald Trump based on “incitement” of an imminent unlawful act is bound to fail according to the time-honored Brandenburg test. The test is two-fold:
- The speech is “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
The only clear directive that Donald Trump gave at his January 6th speech to protest was contingent that the attendees do so “peacefully and patriotically.”
The speech that Donald Trump gave hinged on commoplace political rhetoric that he had given at dozens of spirited, but completely peaceful rallies. Indeed, the Trump legal defense team did an apt job exposing the Democrats’ own lack of standards about whether invoking the term “fight” was tantamount to a call to arms.
A former high-ranking FBI official said that it is unlikely that Trump’s speech could qualify as “incitement” by any reasonable legal standard, as revealed in a Just the News report.
“For speech to meet the threshold of incitement, a speaker must, first, indicate a desire for violence and, second, demonstrate a capability or reasonable indication of capability to carry out the violence, according to Kevin Brock, former assistant director of intelligence for the FBI,” said former assistant director of intelligence for the FBI.
“I didn’t hear a single word about — or anything that would trigger a reasonable person to believe that he was inciting— violence,” he said. “He even used the words ‘peaceful’ and ‘respectful.'”
If the Department of Justice presses for Trump’s prosecution after a Senate impeachment trial acquittal, America will truly be entering dangerous new territory.
OPINION: This article contains commentary which reflects the author's opinion.