On both the criminal and civil litigation fronts, former President Donald Trump faces a bevy of lawsuits and investigations, with more cases likely to follow. Some are civil suits stemming from his pre-presidential business dealings. Others are defamation claims from women he allegedly assaulted. More still are criminal probes and civil actions that scrutinize his attempts to overturn the results of the 2020 election. The Chart below tracks all these cases. It will be continually updated as major legal developments occur.
These cases bear on two pressing questions. First, will Trump maintain his long streak of eluding legal liability in the face of so many lawsuits? Second, if Trump is held to account for illegal conduct, what impact will such a development have on his—and his family’s—political and business fortunes?
Criminal charges—one would think—would be among the most damaging outcomes. After all, a criminal prosecution of a former president would be a singular event in American history. No former president has ever been indicted, much less convicted. Trump lost any immunity from indictment that he may have possessed as president the moment he left office on Jan. 20. To be sure, most of the criminal probes detailed below are in their infancy, so the odds of an actual conviction at this time remain improbable. Even so, the mere stigma of criminal charges against the former president could reshape the American political landscape and the historical understanding of Trump’s behavior.
The civil cases could certainly do their fair share of damage as well, directly or indirectly. If Trump falters in one of his business-related suits, his companies may be subject to massive penalties, or worse. Even apart from such sanctions, his empire is reportedly struggling under looming debt obligations and reduced revenues, a slump which could worsen if his reputation continues to deteriorate.
With these legal threats bearing down on the former president from nearly every direction, this tracker collects them in one place. Below we’ve included key takeaways from each case along with case charts that explain the case’s main issue, procedural posture, and any upcoming deadlines. We will continue to update this information as new filings are docketed, new details emerge, new plaintiffs come forward or drop out, and other significant developments in the cases occur. If you believe we are missing a significant issue or development, send us a message at [email protected].
Key Takeaways
1. E. Jean Carroll Defamation and Federal Tort Claims Act Litigation
Carroll is suing Trump for defamation after he publicly accused her of fabricating a rape allegation against him. The parties are currently involved in an appeal before the Second Circuit, where Trump (and so far, the Justice Department as well) is arguing that he had official immunity from Carroll’s defamation claim under the Federal Tort Claims Act (FTCA).
2. Summer Zervos Defamation Suit
Summer Zervos, a former contestant on the Apprentice, has filed a civil suit against former President Trump for defamation after he claimed her allegations of his inappropriate sexual conduct were lies designed to help the Clinton campaign and improve her fame. The case is currently at the New York Court of Appeals, the highest New York state court.
3. Mary Trump Fraud Litigation
Mary Trump is suing Donald Trump for defrauding her out of millions of dollars in an inheritance dispute. The suit is pending in New York state court, where the parties are currently battling over former President Trump’s move to dismiss the case.
4. Panama Hotel Fraud and Tax Litigation
Ithaca Capital is suing Trump’s hotel management company for fraud in federal court. Primarily, Ithaca claims that Trump representatives exaggerated the value of a Panama hotel during Ithaca’s negotiations to purchase it.
5. Doe v. The Trump Corporation Class Action
A group of anonymous plaintiffs have filed a class action against the Trump family and their business, alleging that the Trumps used their brand to scam investors into paying for worthless business opportunities. The district court denied the Trumps’ bid to force the case into arbitration, and the Trumps are now appealing.
6. DC Civil Suit over Misuse of 2017 Inauguration Funds
In a non-criminal suit, the DC Attorney General is suing several Trump-affiliated entities for misusing inauguration funds to enrich Trump’s family business. The suit is currently in discovery before DC’s local court, where the AG’s office is deposing key Trump executives, notably including his children.
7. Bennie Thompson Incitement Suit for Jan. 6 Capitol Attack
Congressman Bennie Thompson, represented by the NAACP, is suing Trump, Rudy Giuliani, and two right wing militia groups for conspiring to forcibly prevent Congress from counting the Electoral College votes on Jan. 6. The district court is currently waiting for Trump and his co-defendants to respond to Thompson’s complaint.
8. NAACP’s Legal Defense Fund Voting Rights Case for Post-Election Actions
The LDF is suing Trump, the Trump Campaign, and the RNC for their efforts to overturn the 2020 election in violation of the Voting Rights Act and the Ku Klux Klan Act. While the litigation is still at its early stages, Trump faces damages and a declaratory judgment that he did indeed violate these provisions of the law.
9. New York Attorney General’s Civil Investigations
Since Mar. 2019, New York Attorney General Letitia James has been investigating allegations that the Trump Organization altered property values to avoid tax liabilities. The investigation began after Trump’s former attorney Michael Cohen provided congressional testimony that Trump engaged in fraud. In Oct. 2020, James’s office deposed Eric Trump, and in Jan. 2021 a state court judge ruled that Trump’s tax attorneys must turn over thousands of documents.
10. Criminal Investigations into Trump’s Finances
During his presidency, the Manhattan District Attorney investigated Trump’s finances. Manhattan DA Cyrus Vance recently gained access to Trump’s tax information in the course of a criminal investigation into potential tax crimes, insurance fraud, and other financial crimes under state law. Criminal charges have not been filed.
11. DC AG Incitement Criminal Investigation
The DC Attorney General, Karl Racine, has announced a criminal investigation into Trump’s alleged role in provoking the Jan. 6th riots. No charges have been filed, though Racine’s office is reportedly looking into a local DC code that makes it a misdemeanor to incite violence.
12. Fulton County, Georgia Criminal Election Influence Investigation
The Fulton County DA’s Office has opened a criminal investigation into attempted election interference by Trump. The DA’s Office has requested that all official and unofficial emails concerning the election be preserved and has reportedly also planned to look into a call between Senator Lindsey Graham (R-SC) and Secretary of State Brad Raffensperger as part of the investigation as well as Rudy Giuliani’s potential false statements to Georgia officials.
CIVIL CASES
1. E. Jean Carroll Defamation Suit
Carroll v. Trump, No. 20-cv-07311, 2020 WL 6277814 (S.D.N.Y. Oct. 27, 2020), appeal docketed, No. 20-03977 (2d Cir. Nov. 25, 2020)
Plaintiff: E. Jean Carroll, a journalist and advice columnist
Case Summary: In 2019, Carroll publicly accused then-President Trump of sexually assaulting her in a New York City department store in the 1990s. A few hours later, Trump denied Carroll’s allegation and accused her of fabricating the story to drum up publicity for her upcoming book. Carroll then sued Trump for defamation in New York state court, alleging that Trump defamed her when he publicly accused her of falsifying the assault story.
After nearly a year of state court proceedings–and with Carroll’s counsel angling to sample Trump’s DNA–the Justice Department moved to intervene on Trump’s behalf under the Federal Tort Claims Act (FTCA). This move threatened to quash the suit. In effect, the FTCA (as amended by the Westfall Act) provides blanket immunity to federal employees who commit certain torts–including defamation–arising out of their official duties. According to the DOJ, the president’s official duties include speaking to the press about public matters–which would mean that Trump had immunity from any defamatory statements he made about Carroll.
The DOJ’s intervention also derailed the state court proceedings: because FTCA claims must be litigated in federal court, Carroll’s suit was automatically removed to the Southern District of New York (SDNY). In federal court,Carroll argued that Trump’s statements were not protected by the FTCA. In short, Carroll contended that (i) Trump was not covered by the FTCA because the president is not an “employee;” and (ii) Trump’s statements about Carroll fell outside of his official presidential duties.
On both counts, the court agreed. Though removal was irreversible, the court held that the FTCA did not cover Trump’s actions, so Carroll’s defamation suit could proceed against Trump in his personal capacity. Acting separately, the DOJ and Trump both appealed. Trump also requested the court stay the district court proceedings until that appeal is resolved.
Case Status: In the SDNY proceedings, the parties filed opposing memoranda on Trump’s motion to stay in Dec. 2020. The court has not yet ruled on that issue. If the court denies the motion, Carroll’s defamation claim could proceed at the same time as the Second Circuit hears Trump’s appeal on FTCA immunity.
At the Second Circuit, the DOJ and Trump filed separate opening briefs on Jan. 15, 2021. Carroll’s attorneys then requested an Apr. 16, 2021 due date for their reply brief. Notably, her counsel explicitly selected that date so the Biden DOJ would have time to reassess the Trump administration’s position that Trump was acting within the scope of his employment when he allegedly defamed Carroll. The Second Circuit granted that scheduling request. The DOJ has not yet indicated whether it will change its position.
2. Summer Zervos Defamation Suit
Zervos vs. Trump, No. 150522/2017 (N.Y. Sup Ct. Jan. 17, 2017), appeal docketed, No. APL-2020-00009 (N.Y. Mar. 9, 2020)
Plaintiff: Summer Zervos, former contestant on the Apprentice
Case Summary: On Jan. 17, 2017, Zervos filed a suit in New York State Court against Trump for defamation. During Trump’s campaign, many women, including Zervos, accused Trump of inappropriate sexual conduct. In her complaint against Trump, Zervos claims that in 2007, while she sought employment from Trump, he kissed her on the lips and touched her inappropriately. After she rejected his advances, his attitude became very business-like and he later offered her a job for half the salary she was seeking. She attempted to contact Trump, noting that she felt she was being “penalized for not sleeping with him.” Trump said he could not discuss it with her at the time. Zervos says she decided to come forward with these allegations after the Billy Bush Access Hollywood Tape showed Trump speaking in a derogatory manner toward women. In response to her allegations, Trump claims she was lying and was only making these accusations to help the Clinton campaign or to get fame.
Zervos alleges that, as a result of Trump’s claims, she has suffered both emotional and financial harm.
Case Status: Trump filed a motion to dismiss and a stay for the duration of his presidency. On Oct. 3, 2018, the court denied Trump’s motion, finding that, if the facts alleged by the plaintiff are true, she has a reasonable claim to recover for defamation. The court also found that there were no federalism or comity concerns that would suggest that a state court could not hear suit against the sitting president for nonofficial acts. A panel of New York appellate judges affirmed this judgement in Oct. 2019, finding that the president is “not above the law” and that the defamation suit can go forward.
This motion has been appealed to the New York Court of Appeals, the highest New York state court.
Pending the decision from the New York Court of Appeals, in Mar. 2020, the court ruled that Zervos cannot “dig for evidence” in the interim. In 2021, with Trump out of office, Zervos has filed a motion to move the lawsuit forward.
3. Mary Trump Fraud Litigation
Trump v. Trump, No. 0654698/2020 (N.Y. Sup. Ct. filed Sept. 24, 2020)
Plaintiff: Mary Trump, the former president’s niece
Case Summary: In Sept. 2020, Mary Trump sued Donald Trump, her uncle, for allegedly defrauding her out of tens of millions of dollars. When Mary’s father–Donald Trump’s brother–died in 1981, he left Mary a valuable stake in the Trump property empire. Mary was a minor at the time, so Donald Trump and his siblings took control of her share, ostensibly to look after Mary’s interest over the long run.
But according to Mary, that didn’t happen. According to her allegations in the lawsuit, the Trump siblings siphoned off revenue from her share and set up an ongoing scheme to artificially devalue her assets. This went on for nearly two decades. Then, when Trump patriarch Fred Sr. (Donald Trump’s father) died in 1999, Mary took issue with the terms of his will. The Trump siblings immediately pushed back and started maneuvering to force Mary out of the family holdings altogether. After lengthy probate proceedings, and with Mary’s legal fees steadily climbing, the siblings delivered an ultimatum: they would not settle the probate case unless Mary relinquished all interests in the family fortune, including those from her late father.
According to Mary, the Trumps offered a settlement figure that woefully undervalued her share of the family holdings. Still, she ultimately accepted a settlement in Apr. 2001, apparently still unaware she was being sold short.
Then, over fifteen years later, the New York Times broke its 2018 story that the Trump Organization had long been fraudulently manipulating the values of its assets. From there, Mary says she realized that she had settled for tens of millions of dollars less than what her stake was actually worth.
Two years later, Mary published a book accusing the Trumps of shorting her out of her rightful share. She then filed this lawsuit in New York state court on Sept. 24, 2020, accusing Donald Trump and his siblings of fraud and breach of fiduciary duty.
Case Status: Trump moved to dismiss the case on Jan. 4, 2021. Mary filed a response on Feb. 26, 2021.
4. Panama Hotel Fraud and Tax Litigation
Ithaca Cap. Invs. v. Trump Pan. Hotel Mgmt., No. 18-cv-00390 (S.D.N.Y. Mar. 30, 2020)
Plaintiff: Ithaca Capital, a real estate holding company that purchased a majority of the Trump International Hotel in Panama
Case Summary: Donald Trump’s private hotel business–Trump International Hotels Management–is embroiled in federal litigation over a hotel management deal gone bad. Until 2018, Trump International operated a luxury hotel in Panama. As was its standard business practice, Trump International contracted with a separate owner to provide management services and use of the “Trump” label. When a prior owner went bankrupt in 2015, Ithaca Capital moved to purchase a majority of the hotel’s units. But per Ithaca, Trump representatives made a series of fraudulent claims that oversold the hotel’s profitability. Unaware, Ithaca went ahead with the purchase.
The hotel soon ran into financial trouble, and the relationship between the two parties collapsed. Once Ithaca ended the partnership, it claims to have discovered that Trump International had allegedly underreported costs, diverted hotel revenue, and failed to pay income taxes.
After a brief round of arbitration proceedings, Ithaca sued Trump International in the Southern District of New York. Ithaca made several claims against Trump. First, Ithaca argued that Trump representatives–including Eric and Donald Jr.–made exaggerated claims about the hotel’s value. Second, they argued that Trump International breached their agreement by mismanaging the hotel. And third, Ithaca asserted that Trump International improperly diverted hotel revenues for their own use.
Case Status: Trump International challenged each of Ithaca’s claims and asserted several counterclaims of its own. On Mar. 30, 2020, the district court upheld all three of Ithaca’s claims and dismissed all but one of Trump’s counterclaims. Trumps’ remaining counterclaim–for tortious interference–alleges that Ithaca interfered with Trump’s other hotel contracts when Ithaca forced him out of their partnership.
The parties are currently in discovery and are due to finish by Aug. 2021.
5. Doe v. The Trump Corporation Class Action
Doe v. Trump Corp., No. 18-cv-09936 (S.D.N.Y. Oct 29, 2018), appeal docketed, No. 20-01706 (2d Cir. May 28, 2020)
Plaintiffs: (Anonymous) Jane Doe, Luke Loe, Mary Moe, Richard Roe
Case Summary: On Oct. 30, 2018, a class action lawsuit was filed against the Trump Corporation, Donald Trump, Ivanka Trump, Donald Trump Jr., and Eric Trump. The complaint alleges that the defendants used their brand name to defraud thousands of working class individuals by promoting numerous businesses in exchange for “secret payments.” The companies include ACN Opportunity, LLC (a business based on a controversial multi-level marketing scheme), the Trump Network, LLC (another multi-level marketing scheme), and Business Strategies Group, LLC (a seminar claiming to sell the Trump secrets to success). The lawsuit also claims that the defendants are liable for a “pattern of racketeering activity” violating the RICO Act (Racketeer Influenced and Corrupt Organizations Act) as well as activity violating numerous state consumer protection laws concerning fair business practices and competition.
On July 24, 2019, the District Court judge partially granted the defendants’ motion to dismiss. The judge dismissed the RICO claims because the Complaint did not “sufficiently plead that Defendants’ conduct was the proximate cause of Plaintiffs’ losses.” However, she ruled that the other claims concerning the state laws will not be dismissed under Class Action Fairness Act (CAFA).
Case Status: The Trumps’ moved to compel forced arbitration and the district court judge denied the motion in Apr. 2020. The court held that the defendants were not party to the arbitration agreement (between ACN and the plaintiffs) and thus, could not compel arbitration. She also found that the motion to compel arbitration was in bad faith as they are acting in a manner that is “substantively prejudicial towards the plaintiffs” and not within the spirit of the Federal Arbitration Act (FAA). The Trumps have filed an interlocutory appeal to the Second Circuit.
Following the denial of compelled arbitration, the Trumps also filed a motion to stay, or a motion to halt the legal process. The district court denied this motion, citing the four traditional factors that must be balanced when granting a stay and finding that the defendants have not met the requirements to grant a stay.
6. DC Civil Suit over Misuse of 2017 Inauguration Funds
District of Columbia v. 58th Presidential Inauguration Comm., No. 2020-CA-00488-B (D.C. Super. Ct. Sept. 9, 2020)
Prosecuting Office: DC Attorney General (AG)
Case Summary: In the run-up to Trump’s 2017 swearing-in, his inaugural committee raised a record $107 million to spend on inauguration festivities. As a nonprofit, the inaugural committee was bound to use these charitable funds for the public good, namely by organizing events to celebrate the 2017 presidential inauguration.
But as the DC AG alleges, the inaugural committee used over $1 million of those funds in an improper bid to enrich the Trump family’s private businesses. DC’s attorneys are now suing the inaugural committee, the Trump International Hotel, and the Trump Organization over that alleged misspending. Chief among the allegations, the DC AG claims that the committee paid exorbitant rates to rent space in the Trump International Hotel in downtown DC. The committee, for instance, allegedly paid $175,000 to rent the main ballroom on the same day that another nonprofit paid only $5,000–a rate 35 times higher. On top of that, the committee allegedly ignored much better deals available at other upscale locations, settling instead on overpaying for space at the Trump location.
The DC AG frames these payments as an under-the-table attempt to divert charitable funds to the Trumps’ private holdings. The complaint focuses on possible misconduct by committee executive Rick Gates, who also held key roles in the Trump campaign. (Gates would later cooperate with the Mueller investigation.) To tie in the Trump entities, the complaint asserts that the Trump businesses knew it was overcharging the non-profit committee, and points to internal negotiations between the parties that allegedly show both sides were aware of the extreme rates. The DC AG is asking the court to compel the Trump business to put the misspent funds into a trust where they can be put toward charitable purposes.
Case Status: The defendants–the committee itself along with the two Trump businesses–moved to dismiss the suit, but the district court denied that motion in Sept. 2020. On Jan. 11, 2021, the DC AG added a new allegation that the committee improperly used its nonprofit funds to pay a hotel bill on behalf of Trump’s private business. The suit is currently in discovery, and the AG’s office has already deposed several high-level Trump executives, including Ivanka Trump and Donald Trump Jr.
7. Bennie Thompson Incitement Suit for Jan. 6 Capitol Attack
Thompson v. Trump, No. 21-cv-00400 (D.D.C. filed Feb. 16, 2021)
Plaintiff: Representative Bennie Thompson (D-Miss.-2), represented by the NAACP
Case Summary: On Feb. 6, 2021, Mississippi Congressman Bennie Thompson sued former President Trump and Rudy Giuliani along with two right-wing militia groups known as the Proud Boys and the Oath Keepers, for violating the Ku Klux Klan Act of 1871, 42 U.S.C. § 1985(1). In the complaint, Thompson alleges that Trump violated the Ku Klux Klan Act by inciting the rioters with the intent to prevent Members of Congress from discharging their official duties of the timely approval of the Electoral College vote. He argues that after Trump’s loss in the Nov. 2020 election, the then-President set out on a campaign to mobilize his supporters, culminating in the Jan. 6, 2021 attack on the Capitol. It portrays Trump’s rhetoric on the morning of Jan. 6 as a call to arms and as intended to prevent the certification of the election.
The Act was passed in 1871 in response to violence and intimidation by the KKK intended to stop Black people from voting. The legislation allows Members of Congress to sue individuals who conspire to violently “molest, interrupt, hinder, or impede” the discharge of a public official’s duties.
Thompson seeks compensatory damages for his emotional distress suffered during the attack in addition to punitive damages.
Case Status: The complaint was filed on Feb. 16, 2021 with defendants’ summonses attached. According to the summonses, defendants’ answers are due in early March.
8. NAACP’s Legal Defense Fund Voting Rights Case
Mich. Welfare Rights Org. v. Trump, No. 20-cv-03388 (D.D.C. filed Nov. 20, 2020)
Plaintiff: Michigan Welfare Rights Organization and the NAACP, represented by the NAACP Legal Defense & Educational Fund (LDF).
Case Summary: On Nov. 20, 2020, LDF sued then-President Trump and the Trump campaign alleging that their post-election conduct violated Section 11(b) of the Voting Rights Act, 52 U.S.C. § 10307(b). After losing the election, Trump spent weeks pressuring Republican election officials not to certify the election—in particular, the complaint examines the actions of Wayne County Repulican election officials who first voted not to certify the election, though they eventually did. Section 11(b) forbids intimidation of voters, those aiding voters, and certain election officials. Voting is broadly defined in the Voting Rights Act, covering “all action necessary to make a vote effective(,) … including … having such ballot counted properly and included in the appropriate totals of votes cast.”
In Dec. 2020, the complaint was amended to include the NAACP as a plaintiff, the Republican National Committee as a defendant, and alleged a new claim: that defendants violated the Ku Klux Klan Act, which prohibits conspiracies to deprive someone of equal protection under law or the right to vote. 42 U.S.C. § 1985(3). LDF argues that Trump’s efforts to discard votes in cities with large Black populations meets the statutory definition.
LDF seeks statutory damages, a declaratory judgment, and injunctive relief that would prevent defendants from intimidating voters and election officials in the future.
Case Status: On Feb. 25, defendants moved to dismiss the case. They had a variety of arguments, including that the case was filed in the wrong court, that the cited statutes do not allow a private party to bring litigation, and that their conduct did violate the statutes.
9. NY Civil Suit over Fraudulent Real Estate Practices
People v. Trump Org., No. 451685/2020 (N.Y. Sup. Ct. Dec. 15, 2020)
Plaintiff: New York Attorney General (AG)
Case Summary: In Mar. 2019, New York Attorney General Letitia James launched a civil probe investigating allegations that the Trump organization inflated and deflated property values to avoid tax liability and for other financial benefits. She began her investigation after Trump’s former attorney Michael Cohen testified before Congress that Trump had engaged in fraud. While there is some overlap, James has noted that her investigation differs from and is independent of the Manhattan DA criminal investigation.
Much of her probe has focused on Seven Springs, a Trump-owned property in New York. In Dec. 2019, James subpoenaed the Trump Organization, seeking records related to a $21 million tax deduction that Trump claimed against the property in 2015. Per her court filings, James is exploring whether Trump improperly inflated the property’s value to boost the size of the tax benefit.
James is also looking into other transactions relating to Trump properties. She is investigating whether Trump failed to pay taxes on debt forgiven during the financial restructuring of the Trump Hotel & Tower in Chicago and the appraisal of the LA Trump National Golf Club used for his conservation tax break, which was substantially higher than metrics typically used to value golf properties.
Case Status: In connection with the Seven Springs subpoenas, James’s office deposed Eric Trump in Oct. 2020. She also sought related records held by Trump’s tax lawyers. His counsel initially refused to produce them, claiming they were shielded by attorney-client privilege. The state court judge disagreed, ruling on Jan. 29, 2021 that the tax attorneys must turn over thousands of documents about the tax deductions.
CRIMINAL CASES
10. Investigations into Trump’s Finances
Trump v. Deutsche Bank, No. 19-cv-03826 (S.D.N.Y. Apr. 29, 2019)
Trump v. Vance, No. 19-cv-08694 (S.D.N.Y. Sept. 19, 2019)
Prosecuting Office: In 2019, then-President Trump sued to block subpoenas issued by three House Committees and the Manhattan District Attorney seeking his financial information in 2019. As of Feb. 22, the Manhattan DA now has access to Trump’s tax information.
Case Summary: In 2019, the House Intelligence and Finance Committees issued subpoenas to both Deutsche Bank and Capital One seeking information about then-President Trump’s finances. Before the banks complied with the subpoenas, Trump sued, seeking a declaratory judgment that they were unenforceable and an injunction that would have prevented the banks from disclosing Trump’s financial information. In addition, the House Oversight Committee subpoenaed Mazars, Trump’s accounting firm, demanding additional accounting information. Trump again sued to block the subpoena.
In parallel, Manhattan District Attorney, Cyrus Vance Jr., subpoenaed Mazars, for access to Trump’s tax records. Trump again sued to prevent the disclosure of this information.
All three cases reached the Supreme Court, where they were decided on the same day, July 9, 2020. The congressional subpoenas were combined into one case, and were remanded so the lower courts could consider separation of powers concerns raised by congressional committees subpoenaing a sitting president. In the Vance case, the Court ruled that a president’s financial information could be subpoenaed by a local district attorney.
Case Status: With the seating of the new Congress in Jan. 2021, the Congressional subpoenas expired. The Vance subpoena again reached the Supreme Court, which on Feb. 22, refused to block it. His spokesperson has confirmed that the office now has access to Trump’s tax returns, including millions of pages of documents. Charges have not been filed.
11. DC Attorney General Incitement Investigation for Attack on U.S. Capitol
Prosecuting Office: DC Attorney General (AG)
Case Summary: DC Attorney General Karl Racine has said he is exploring whether to charge Trump with incitement. So far, his office has focused on a DC statute that makes it a misdemeanor to “incite or provoke violence where there is a likelihood that such violence will ensue.” Presumably, DC prosecutors are looking into Trump’s statements and tweets before and during the riot, gauging whether they amount to criminal incitement.
That said, Racine has cautioned that prosecuting Trump would be an uphill battle. Though the former president no longer could claim presidential immunity, the First Amendment may still shield his speech from prosecution. Under Brandenburg–the controlling case here–a speaker can be prosecuted for incitement only when their speech is both intended and likely to cause imminent lawless action. This is a notoriously difficult standard to meet, especially on the intent side. Even though some rioters have claimed they were following Trump’s instructions, Racine would need to actually prove it was Trump’s actual goal for them to do so. Despite the trail of incriminating statements Trump left behind, Racine may still have trouble meeting such a high bar.
Not only that, Racine has limited options in terms of what offenses he can charge. Because DC splits criminal jurisdiction with the U.S. government, Racine’s office can enforce only low-level crimes. As a result, he cannot charge Trump with arguably more applicable felonies, and is effectively limited to DC’s incitement statute. And as defense attorneys in DC have noted, this misdemeanor offense is typically charged in street-level disorderly conduct cases, arguably making it a poor fit.
Case Status: Racine’s office is investigating Trump’s conduct but has not filed charges.
Note: In the Department of Justice investigations, prosecutors are apparently more focused on charging the rioters themselves rather than investigating the former president. Though DC’s top federal prosecutor refused to rule out criminally investigating Trump, nothing since then has suggested a federal probe is in the works. Justice Department officials have reportedly debated whether to open a criminal investigation of Trump associate, Roger Stone.
12. Fulton County, Georgia Criminal Election Influence Investigation
Prosecuting Office: Fulton County, GA District Attorney’s Office.
Case Summary: On Feb. 10, 2021, the Fulton County DA’s Office opened an investigation into attempted election interference by former President Trump. The investigation is looking into potential violations of Georgia election laws, including the “solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration.”
Case Status: On Feb. 10, 2021, the Fulton County DA’s Office sent letters to Governor Brian Kemp, Lieutenant Governor Duncan, Secretary of State Raffensperger, and Attorney General Carr informing them of the new investigation and requesting that all records relating to the election, including emails sent by employees from non-government accounts, be preserved.
Fulton County DA Fani Willis also reportedly plans to investigate a phone call between Senator Lindsey Graham (R-SC) and Georgia Secretary of State Brad Raffensperger where Raffensperger claims Graham asked the Secretary of State if he could throw out legally cast ballots. Graham’s spokesperson claims that this is not true and Graham was instead asking about the signature verification process. The DA’s office is also reportedly looking into whether Rudy Giuliani violated election laws in making false statements to Georgia officials.
Photo of Manhattan District Attorney Cy Vance by Andrew Burton/Getty Images; Photo of DC Attorney General Karl Racine by Alex Wong/Getty Images; Photo of NY Attorney General Letitia James by Michael M. Santiago/Getty Images.