Attorneys at the Washington, DC Attorney General’s Office are investigating whether former President Donald Trump’s alleged role in the U.S. Capitol insurrection breached district law.
The debate takes place a month after Attorney General Karl Racine first suggested indicting Trump. A spokesman for the attorney general drew attention to the numerous details that have come to light since the attack on the Capitol and stated that it is the attorney general’s responsibility to investigate any evidence of illegal incitement to violence.
Trump’s alleged role in inciting the violence, which resulted in the death of several people, was aired in Congress and in court. The impeachment managers played a video linking the former president’s words to the violent actions of the rioters. Prosecutors have told federal judges across the country that accused insurgents have repeatedly pointed to Trump as the person who directed them.
Racine’s lawyers weigh these facts up, but also carefully consider the legal challenges and chances of successful prosecution if they accuse the former president of wrongdoing, the spokesman said.
The deliberations among attorneys are aimed to be quick but not rash, and the impeachment schedule has not been factored into their schedule.
Instead, attorneys examine all potential legal hurdles, carefully examining the facts and the law.
Racine recognized that it could be an uphill battle due to its limited jurisdiction in Washington. Racine’s office only enforces local regulations for the city, while prosecuting both serious and federal crimes comes under the jurisdiction of the Department of Justice.
The code that the Attorney General is focused on is a Washington law that was amended in 2011 that makes it a crime for people to encourage violence to others a likelihood that such violence will occur. “A conviction lasts a maximum of six months.
The attorney general said that about 20 people have been prosecuted under this particular section of the Messy Conduct Act in the past decade, but none showed the seriousness of the conduct alleged against the former president.
Among the cases CNN examined, all revolved around street gatherings that became loud and violent. Two defendants were charged with calling on a group of people to fight or acting aggressively in order to mock a crowd. In a third case, the defendant was charged with hurling racist slurs at a Washington police officer in order to induce others to intervene in the defendant’s arrest. All three cases resulted in release from charges or parole.
Several defense lawyers tell CNN that procedural and practical issues will make a successful prosecution against the ex-president nearly impossible. These experts point out that the DC statute, viewed as traditional disorderly behavior, has never appealed to a politician for his words.
Another hurdle is that Racine is not empowered to bring Trump back to Washington to face the charges.
“You’d have to get physical jurisdiction over (Trump), and DC isn’t usually extradited for offenses,” said Richard Gilbert, a DC criminal defense attorney. “I don’t know how you would get it from Mar-a-Lago.”
“No sane prosecutor would dream of bringing charges,” said a DC criminal defense attorney, who asked for anonymity to speak freely about Racine’s possible plan.
That attorney spoke about the beginning and intent of the law, noting that the Disorderly Conduct Act in DC 2011 had been amended and refined to curb arbitrary enforcement by police officers.
The intent seemed to be, said this attorney, to target “lifestyle violations” such as “when people hang out on a street corner and drink and you start annoying someone else, and the police happened to see that this could be prosecuted could statute. “
“I am not aware that this provision has ever been used against a politician,” noted the lawyer.
Both defense lawyers stated that any charges of incitement to violence or sedition would be brought more appropriately at the federal level.
That seems like another option for Racine.
There is a separate DC code that makes it a criminal offense to cause a riot, but the United States attorney in DC is solely responsible for prosecuting that crime.
Acting U.S. attorney Michael Sherwin said his office will weigh the potential charges of all actors involved in the uprising, but declined to elaborate on whether that also means Trump.
Racine announced in January that his office is also “working at a high level with federal attorneys”.
This story has been updated with additional details from the Washington, DC Attorney General.