With federal authorities racing to prosecute the rioters who breached the US Capitol Building this week, the question of Donald Trump’s role in the events hangs over the investigation.
On Thursday, the top federal prosecutor for the Washington region suggested the president’s actions could come under scrutiny, raising the stakes for an incoming Biden administration that was already facing pressure to investigate Mr Trump when he leaves office.
“They have to be aggressively going after the perpetrators [of the riot],” said Harry Litman, a former US attorney in the Clinton administration. “How do you do that and just give a pass to the demagogue who was cracking the whip?””
Any attempt to hold Mr Trump accountable for the riot on Wednesday, which left five dead, would face challenges including strong free speech protections under US law and the possibility that he issues himself a sweeping self-pardon before leaving office.
Mr Trump has previously claimed the “absolute right” to give himself a pardon, though constitutional scholars generally view the notion as legally dubious. US media has reported that Mr Trump has discussed the idea in recent weeks.
Mr Trump posted a concession speech on Twitter on Thursday, condemning “the violence, lawlessness and mayhem” and portraying his efforts to cling to power as merely an attempt to “ensure the integrity of the vote”.
With just days until Mr Trump leaves office, grappling with such difficult questions about his potential liability, and providing a full accounting of Wednesday’s unrest, will be the work of a Department of Justice under new Democratic leadership.
Joe Biden, the president-elect, on Thursday introduced Merrick Garland, the federal appeals judge, as his pick to be attorney-general on Thursday as he denounced the riot as “one of the darkest days in the history of our nation”.
Already, alleged participants in the storming of the Capitol building have begun to be federally charged for offences related to trespass, weapons possession and assaulting officers.
Michael Sherwin, the acting US attorney for the District of Columbia, on Thursday declined to rule out investigating Mr Trump’s role in inciting the crowd, saying: “We’re looking at all actors here”.
The New York Times has reported that Pat Cipollone, the White House counsel, had warned the president on Wednesday he could have liability.
Mr Trump had encouraged his supporters to come to Washington DC, promising them a “wild” day, as he sought to pressure Congress to refuse to count the results from battleground states that voted for Mr Biden.
Immediately before the attack on the Capitol, the president at a rally outside the White House urged the assembled crowd to march on Congress, telling them to “fight much harder” and to “show strength”. People began heading to the Capitol even as he spoke.
Other speakers at the rally made similarly inflammatory remarks, with the president’s lawyer, Rudy Giuliani, calling for “trial by combat”.
But legal experts said prosecutors would probably find it difficult to charge Mr Trump and his associates for inciting the riot given the vagueness of their comments and strong US free speech protections. Similar hurdles would face any civil lawsuits.
A 1969 Supreme Court case involving the Ku Klux Klan created a test that requires prosecutors to show that a person’s comments were specific and likely to produce “imminent lawless action”. The court later said it is not enough for language to have a “tendency to lead to violence”.
“The bar for punishing someone for inciting violence is very, very high,” said Alan Rozenshtein, a professor at University of Minnesota Law School and a former Department of Justice lawyer.
“There’s no words where [Mr Trump] said go break into the Capitol and disrupt the hearing that’s going on and break the windows and all of those things,” noted a DC defence attorney, who requested anonymity given the political tensions in Washington.
Mr Sherwin, the DC US attorney, on Thursday told reporters that participants in the riot may face charges under more obscure statutes like one that criminalises “seditious conspiracy”.
The statute has been used in a handful of terrorism cases in recent decades and primarily deals with attempts to overthrow the government by force. But last year, Jeffrey Rosen, now the acting attorney-general, recommended using sedition charges in response to violence at anti-racism protests.
In a September memo to prosecutors, he noted that seditious conspiracy includes any plots to use force to “delay the execution of any law” or seize any property of the United States”, language that could apply to Wednesday’s effort by rioters to halt the counting of the Electoral College votes by storming Congress.
There is no evidence that Mr Trump was involved in any conspiracy to use force to slow down the certification of Mr Biden’s victory. But even if such charges only targeted physical participants in the riot, they would draw a clear political line in the sand, noted Mr Rozenshtein.
“The point of seditious conspiracy charges is to send a message that this behaviour is beyond the pale because it strikes at the heart of democratic self-government,” he said.