Orange Meltdown, Con't

Jose Pagliery at the Daily Beast points out a largely unheralded Justice Department memo earlier this month that leaves the door open for federal indictments of Donald Trump.

 

When the Department of Justice took the position this week that former President Donald Trump acted improperly by urging his followers to attack Congress in 2021, prosecutors did more than open the door to a potential flood of civil lawsuits from police officers who were injured on Jan. 6.

What they actually did, according to legal scholars, is lay the groundwork for a potential criminal indictment against Trump for inciting the insurrection.

“If they took the position that the president was absolutely immune, then they wouldn’t be able to bring a criminal prosecution,” said one person familiar with the DOJ’s ongoing investigation who spoke on condition of anonymity.

Legal scholars have come to the same conclusion.

“Had DOJ concluded that incitement unprotected by the First Amendment could nevertheless be within the president’s official functions, that could conceivably have impacted criminal charging decisions related to the same speech,” said Mary B. McCord, a former federal prosecutor now teaching at Georgetown University Law Center.

At the behest of the District of Columbia’s federal appellate court, the DOJ last week submitted a legal memo weighing in on a civil dispute by injured police officers. The department clarified that Trump’s speech, full of vitriol and fury, was not protected by presidential immunity, nor was it protected by his own free speech rights under the First Amendment.

“Such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States,” the DOJ wrote.

The department went out of its way to say it doesn’t necessarily support officer lawsuits against Trump, noting that it “expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints.” But by making clear that Trump’s speech was outside the norms of his office, it stripped the former president of virtually any defense he could make.

“If they’re saying it’s outside the scope of immunity of civil suits, and outside the scope of protected speech, there really isn’t anything else out there protecting Trump,” said one attorney, who asked to remain anonymous to avoid rattling DOJ leadership.

The two indictments Trump could face are for his incitement of the Jan. 6 riot—a federal crime—and his attempts to overturn the election results in Georgia, a state case there.

So far, the Justice Department has not indicated its legal analysis of the looming federal case against Trump, which concerns the effort his campaign led to undermine the electoral vote by Congress. However, its new legal memo draws a clear red line on his actions during the lead up to the actual attack on Congress.

 

This is a necessary step, but this is a determination that should have been made two years ago.  Does it finally mean that Special Counsel Jack Smith is moving forward? At this point, the Trump regime seems to think so. They're already planning to go after DA Fani Willis in Atlanta, and the New York cases brought by Manhattan DA Alvin Bragg and New York AG Tish James still exist, but everyone's running out of time.

We'll see.