Was The Impeachment Case Really Strong? Two Ways to Determine If Trump Caused the Riot
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A Slam-Duck Impeachment Case
WASHINGTON, D.C. (February 16, 2021) - The Democrats' failure to convict Donald Trump of starting an insurrection - despite evidence which some said made the impeachment case a "slam-duck" - is being blamed on politics, fear of Trump by Republicans, and the argument that the Senate lacked jurisdiction to convict someone no longer in office, but there are two easy ways to see if the case against Trump is anywhere near as strong as many claimed.
As Senate Minority Leader Mitch McConnell pointedly reminded us, Trump "is still liable to be tried and punished in the ordinary tribunals of justice," and that "we have criminal justice system in this country; we have civil litigation. And former presidents are not immune from being accountable by either one."
So, if the case that Trump caused the riot is so strong, one test would be for criminal charges to be brought against the former president, and to have the impeachment case tried before a jury.
The District's AG has already warned that inciting violence is a crime in D.C., and he is considering charging Trump with that crime.
But any refusal by AG Karl Racine, and/or by the Justice Department, to charge Trump with causing the riot can no longer be blamed on Republican pressure, so refusing to even charge Trump would suggest weaknesses in the case against him.
Proving The Crime
Another reason might be that, in a criminal case, every element of the crime must be proven beyond a reasonable doubt.
In other words, winning a case is a real courtroom can be much more difficult that winning it in the court of public opinion, a "victory" which chief prosecutor Jamie Raskin claimed after his defeat in the Senate.
This problem can easily be solved, however, by Democratic members of Congress bringing a civil action against Trump for all the physical and other harm he caused,
Indeed, says Banzhaf, it will be interesting to see if any of those who voted to charge him with causing the riot - and especially the House managers who argued so forcefully for that very assignment of blame - will have the courage of their convictions, and dare to try to prove their assertions in a court of law before an impartial judge or jury.
Such a civil action, if successful, would vindicate their repeated, disputed, and just-rejected claims that Trump caused the destructive riot.
It could also assure that he does not escape all consequences for his actions, since the damages from the riot - including those from several wrongful death actions - could easily amount to tens of millions of dollars, plus even more in punitive damages.
But if not a single Democratic member of Congress comes forward to bring such a civil action - probably, and most effectively, as a class action law suit - Trump may well get away with what he has done, since the Senate has just acquitted him.
Absent such a suit, Democrats might also be perceived as hypocrites who wrongfully and baselessly accused him of causing a riot for largely political reasons.
A Civil Tort Action Against Trump
Virtually all Democratic House members could bring a civil tort action against Trump for destruction of property or trespass to their offices, false imprisonment for those forced to remain in hiding for extended periods of time, and for intentional infliction of severe emotional distress.
In any criminal trial for inciting the riot, prosecutors would face the daunting task of proving beyond any reasonable doubt that Trump's various actions caused the riot and the resulting harm. But in stark contrast, Trump can be found liable for enormous damages in a civil tort action simply upon proof that, without his actions, the riot probably would not have occurred.
In other words, if "but for" his actions the riot probably would not have occurred, Trump can be held liable for the entire amount of all the damages, even if many others (e.g., those who financed the gathering, groups which planned the attack beforehand, the individual rioters themselves, etc.) are also found to be causes. In other words, in a civil action, there can be several different causes, and each can then be sued for the entire amount of all the resulting damages.
More importantly, plaintiffs in a civil action would only have to prove this "causation in fact" element of the tort, like Trump's state of mind, by the very low standard of "preponderance of evidence" (more likely than not) rather than the much higher hurdle of proving it beyond a reasonable doubt in a criminal proceeding.
Moreover, a civil class-action law suit should be simple to prepare, since the House managers did virtually all of the work by laying out a very powerful case, with overwhelming evidence, that Trump was responsible for ("caused") the resulting riot, even if their case floundered on other grounds such as lack of jurisdiction for the Senate to try and convict someone no longer in office, says Banzhaf.
Kabuki Theater
In short, Democratic members of Congress can help salvage their reputations damaged by insisting on bringing an impeachment effort which was doomed to failure from the start - and which has been termed mere "kabuki theater," an exercise in futility, and much "sound and fury signifying nothing" - by convincing a jury to accept their assertions by a simple preponderance of the evidence in a civil trial proceeding.
On the other hand, if not even one single member of Congress follows up this resounding loss in the Senate by bringing a civil tort action against Trump, many voters may well conclude that they do not have the courage of their own convictions, and that the impeachment case is so weak that they dare not bring it to court where they cannot blame politics if the verdict does not vindicate their claims, argues Banzhaf.
"Yes, I would be willing to help bring such an action," says Banzhaf, who recently was called "A King of Class Action Lawsuits," and who successfully sued former vice president Spiro T. Agnew when he was able to avoid prison, and would have been permitted to keep all the money he received in bribes had the professor not engineered a law suit which succeeded in getting all the bribe money back with accumulated interest.
Banzhaf has also been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," the "Dean of Public Interest Lawyers," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."
