On multiple fronts, Donald Trump is facing the possibility of criminal charges, but those proceedings are not the only points of concern for the former president and his attorneys.
On the contrary, the Republican is also facing multiple civil suits stemming from his role in inciting an insurrectionist attack on the U.S. Capitol on Jan. 6. The first of these cases was filed by Rep. Eric Swalwell (D-Calif.) in March, and as NBC News reported yesterday, Team Trump is eager to make the case go away.
For the most part, lawyers representing the former president presented predictable arguments to a federal judge while asking for the lawsuit to be dismissed. Trump’s attorneys tried to make the case, for example, that if a president has immunity from civil suits over his official actions while in office, that same immunity applies now, even though he’s a private citizen, because at issue are steps he took during his term.
That’s a difficult line to take seriously, but that was the pitch.
But that wasn’t my favorite line. This was.
…Trump lawyers argued that because he was impeached, tried in the Senate and acquitted, Trump cannot be sued for the same conduct. The Constitution provides that a president who is impeached and convicted in the Senate can, once out of office, be subject to criminal or civil actions. His lawyers argue, without offering any legal support, that the opposite must be true: A president acquitted in the Senate is beyond the reach of the courts over similar claims.
Or as a TPM report put it, “The failure of the Senate to convict Donald Trump for inciting the Jan. 6 Capitol insurrection means he can’t be held accountable for it in any way, the former president argued in a Monday court filing.”
One need not be a constitutional scholar to scoff at such an argument. Congress’ impeachment proceedings were, by definition, a political process. A bipartisan majority of the House voted to impeach Trump, and a bipartisan majority of the Senate voted to convict him, but that did not magically wipe the slate clean when it comes to the former president’s liabilities.
Indeed, none other than Senate Minority Leader Mitch McConnell (R-Ky.) discredited Team Trump’s argument, several months before it was brought to a federal courtroom.
As regular readers may recall, moments after the former president’s impeachment trial, McConnell delivered memorable remarks on the Senate floor, while reading from a prepared text. “There is no question — none — that President Trump is practically and morally responsible for provoking the events of that day. No question about it,” the Senate GOP leader explained. “The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.” McConnell went on to say, “Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.” Though the Kentucky senator didn’t explicitly call for Trump’s prosecution, it did not go unnoticed that his remarks added, “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.” Let’s repeat that one. Moments after Trump’s impeachment trial, when a bipartisan majority of senators agreed that the former president incited an insurrectionist riot, the Senate’s top Republican explicitly explained, “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.” This was not a controversial assessment. Trump’s lawyers might want to familiarize themselves with it.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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