Donald Trump’s incendiary call at a Texas rally for his backers to ready massive protests against “radical, vicious, racist prosecutors” could constitute obstruction of justice or other crimes and backfire legally on Trump, say former federal prosecutors.
Trump’s barbed attack was seen as carping against separate federal and state investigations into his efforts to overturn the 2020 election results and his real estate empire.
Trump’s rant that his followers should launch the “biggest protests” ever in three cities should prosecutors “do anything wrong or illegal” by criminally charging him for his efforts to overturn Joe Biden’s 2020 victory, or for business tax fraud, came at a 30 January rally in Texas where he repeated falsehoods that the election was rigged.
Legal experts were astonished at Trump’s strong hints that if he runs and wins a second term in 2024, he would pardon many of those charged for attacking the Capitol on 6 January last year in hopes of thwarting Biden’s certification by Congress.
Former Richard Nixon White House counsel John Dean attacked Trump’s talk of pardons for the rioters as the “stuff of dictators” and stressed that “failure to confront a tyrant only encourages bad behavior”.
Taken together, veteran prosecutors say Trump’s comments seemed to reveal that the former president now feels more legal jeopardy from the three inquiries in Atlanta, Washington and New York, all of which have accelerated since the start of 2022.
Trump’s anxiety was especially palpable when he urged supporters at the Texas rally to stage “the biggest protests we have ever had in Washington DC, in New York, in Atlanta and elsewhere,” should any charges be brought, a plea for help that could boomerang and create more legal problems for the former president.
Dennis Aftergut, a former federal prosecutor who is of counsel to Lawyers Defending American Democracy, told the Guardian Trump “may have shot himself in the foot” with the comments. “Criminal intent can be hard to prove, but when a potential defendant says something easily seen as intimidating or threatening to those investigating the case it becomes easier,” Aftergut said.
Aftergut added that having proclaimed “his support for the insurrectionists, Trump added evidence of his corrupt intent on January 6 should the DOJ prosecute him for aiding the seditious conspiracy, or for impeding an official proceeding of Congress”.
Likewise, a former US attorney in Georgia, Michael Moore, said Trump’s comments could “potentially intimidate witnesses and members of a grand jury”, noting that it is a felony in Georgia to deter a witness from testifying before a grand jury.
Trump “is essentially calling for vigilante justice against the justice system. He’s not interested in the pursuit of justice but blocking any investigations”, Moore added.
Trump’s angry outburst came as three investigations by prosecutors that could lead to charges against Trump or top associates all seemed to gain steam last month.
A special grand jury, for example, was approved in Atlanta focused on Trump’s call to Georgia secretary of state Brad Raffensperger on 2 January last year, asking him to just “find” enough votes to block Joe Biden’s Georgia victory, a state Trump lost by more than 11,700 votes.
Trump’s call for huge protests prompted the Fulton county district attorney, Fani Willis, who is leading the criminal inquiry, to ask the FBI to do a threat assessment to protect her office and the grand jury that is slated to meet in May.
Last month too a top justice official revealed that DOJ is investigating fake elector certifications declaring Trump the winner in several states he lost, a scheme reportedly pushed by Trump lawyer Rudy Giuliani by which vice-president Mike Pence could block Congress from certifying Biden’s win. To Trump’s chagrin, Pence rejected the plan.
Further, the New York state attorney general last month stated in a court document that investigators had found evidence that Trump’s real estate business used “fraudulent or misleading” asset valuations to obtain loans and tax benefits, allegations Trump and his lawyers called politically motivated.
Ex-prosecutors say that Trump’s Texas comments are dangerous and could legally boomerang as the prosecutors appear to have new momentum.
“Our criminal laws seek to hold people accountable for their purposeful actions,” Paul Pelletier, a former acting chief of the fraud section at DOJ, said. “Trump’s history of inciting people to violence demonstrates that his recent remarks are likely to cause a disruption of the pending investigations against him and family members.”
Pelletier added: “Should his conduct actually impede any of these investigations, federal and state obstruction statutes could easily compound Mr Trump’s criminal exposure.”
Trump’s remarks resonated especially in Georgia, where former prosecutors say he may now face new legal problems.
Former prosecutor Aftergut noted that Willis understood the threat when she quickly asked the FBI to provide protection at the courthouse, and he predicted that the immediate effect on the deputy DAs working on the case would be “to energize them in pursuing the case”.
In a similar vein, ex-ambassador Norm Eisen and States United Democracy Center co-chair said Trump’s call for protests in Atlanta, New York and Washington if prosecutors there charge him “certainly sounds like a barely veiled call for violence. That’s particularly true when you combine it with his other statements at the Texas rally about how the last crowd of insurrectionists are being mistreated and did no wrong”.
In addition, congresswoman Liz Cheney, the co-chair of the House panel investigating the 6 January Capitol assault by Trump followers, has stated that Trump’s talk of pardons and encouraging new protests suggests he would “do it all again if given the chance”.
On another legal front, Aftergut pointed out that some Trump comments at the rally might help prosecutors at DOJ expand their inquiry. “Trump handed federal prosecutors another gift when he said that Mike Pence should have ‘overturned the election’.”
Some veteran consultants say Trump’s latest attacks on prosecutors shows he is growing more nervous as investigations appear to be getting hotter.
“Trump’s prosecutor attacks are wearing thin with the broad Republican electorate,” said Arizona Republican consultant Chuck Coughlin “He’s trying to whip up the base for his personal gain. This is another iteration of Trump’s attacks on the government.”
From a broader perspective, Moore stressed that Trump’s multiple attacks on the legal system at the Texas rally represent “just another erosion of the norms of a civilized society by Trump. The truth has taken a backseat to Trumpism”.