GWU law professor Jonathan Turley: ‘Very doubtful’ Donald Trump could be convicted criminally for incitement

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After former President Donald Trump was acquitted Saturday, Senate Minority Leader Mitch McConnell gave Democrats and Never Trumpers some hope by declaring in a speech that he could still be “held accountable” in a criminal court of law.

But what the Senate leader didn’t tell them is that, according to legal scholar Jonathan Turley, the likelihood of the former president being convicted criminally for allegedly inciting the Jan. 6th riot at the U.S. Capitol is extraordinarily low.


Speaking on Fox News’ “Fox & Friends Sunday,” the famed legal scholar and George Washington University Law School professor explained why.

And wouldn’t you know it, the reason why Trump likely won’t be convicted in a criminal court is the same as the reason why the Democrats failed to convict him in the Senate trial: Because there was no substantive evidence for their case.

Take witness testimony, for example.

There were a dozen witnesses that they could have called over the four weeks after the snap impeachment to lock in their testimony, and they didn’t do that,” Turley noted.

Not until the last minute, when the House impeachment managers called for Democrat Rep. Jaime Herrera Beutler to testify about some obscure phone call between Trump and House Minority Leader Kevin McCarthy that she’d allegedly been briefed on.

But after a shockingly brief negotiation with their Republican colleagues Saturday, the House managers obediently agreed to just drop the matter altogether and instead enter a written record of Beutler’s statement into the trial record.

It made no sense, as noted by Turley.

Listen:

[T]hey had this Perry Mason moment where suddenly someone jumps up and says I have witnesses to offer right before closing argument. None of it made any sense, and then when the House managers then accepted a stipulation to what they had just said in the record, it left all of us confused,” he continued.

If you wanted to win this case, you would have spent the four weeks before the trial locking in this testimony, including the witness that they were talking about,” Turley continued. “She stated in the media that she has been talking about this conversation for at least a week. The McCarthy call has been known for weeks, and yet the House members were suggesting that this was all something they learned about just the evening before.”

The fact is, he continued, there was no substantive evidence to back the far-fetched notion that Trump had incited the Jan. 6th riot at the U.S. Capitol.

“Usually when you use terms like incitement, you refer to how the courts have defined those terms that’s traditional. It’s not that you are bound by those definitions, but that’s your point of comparison. Instead Rep. Raskin said, ‘Oh, don’t worry about the definition of incitement. This is unique. We call this presidential incitement,’ and offered elements of their own,” Turley explained.

“Well, that’s not how we’ve done it in the past. But more importantly, no matter how you define incitement, the state of mind of Donald Trump was the key question, and they really did not want to call witnesses previously, they didn’t want to establish that element, they wanted to try it on circumstantial evidence.”

That’s because they had no real evidence. It’s also why the likelihood of a criminal conviction are practically non-existent.

I am very doubtful that it could survive, if not at trial, then an appeal I think it would collapse,” he said.

Someone might want to tell that to McConnell.

“[I]mpeachment was never meant to be the final forum for American justice. Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal,” he said during a post-trial speech delivered on the Senate floor Saturday.

“Indeed, Justice Story specifically reminded us that while former officials were not eligible for impeachment or conviction, they were ‘still liable to be tried and punished in the ordinary tribunals of justice.’ We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”

Listen:

 

In a speech delivered in 1833, then-Justice Joseph Story, who served on the high court from 1812 to 1845, explained how impeachment was only designed to remove someone from office — and that everything else had to be dealt with in the criminal courts.

The full quote can be read below:

As it is declared in one clause of the Constitution, that ‘judgment, in cases of impeachment, shall not extend further, than a removal from office, and disqualification to hold any office of honour, trust, or profit, under the United States;’ and in another clause, that ‘the president, vice president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanours;’ it would seem to follow, that the Senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the Sonstitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice.

 

And that’s fine, but as Turley noted, that doesn’t automatically equate to a conviction, particularly in a case where there’s no substantive evidence.

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Vivek Saxena

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