At the rally preceding the riot, urging the crowd to go to the Capitol and ask legislators to address his baseless claims of election fraud. He urged his followers to “show strength” and “fight much harder.” Rudy Giuliani, Donald Trump Jr, and the United State Representative Mo Brooks also spoke ahead of the riot, which led to five deaths.

The prospect that Trump could be sued for causing the riot has been raised by some Democrats and some Republicans, and Michael Sherwin, the acting U.S. attorney in Washington fed some rumors when he stated on Thursday that his office might investigate the position of the president. Yet several legal analysts remain uncertain that charges against Trump will be pursued. 

“A prosecution is probable but unlikely,” said John Banzhaf, a professor of law at the University of George Washington. ” a conviction would be even less likely.”

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‘Imminent Lawless Action’

That’s because, in its landmark decision in Brandenburg v. Ohio, the Supreme Court stated that the constitutional right to freedom of expression protects inflammatory rhetoric unless it is intended to incite “imminent lawless action and is likely to incite or produce such action.” The decision overturned the conviction of Clarence Brandenburg, A leader of the Ohio Klan, who was prosecuted for making a speech in which he advocated violence against African Americans and Jews under state law.

The case, in which Brandenburg was represented by the American Civil Liberties Union set a high limit on criminal prosecutions for provocative speech. Prosecutors would have to show that he intended to provoke violence to make the case that Trump incited the riot, but his words are vague enough that it can be argued that he was simply urging his supporters to protest peacefully outside the Capitol. “It’s always hard to show the intent to incite,” said Shirin Sinnar, a Stanford law professor who studies the legal treatment of political violence. “A lot of the proof here can be interpreted in various ways.”

Trump called his statements at the rally “totally appropriate,” speaking to reporters on Tuesday, denying any responsibility for the attack. Instead, he made attempts to impeach him as a “horrible thing” that caused “tremendous rage.” 

The language used by Trump in his speech may be parsed by prosecutors to prove motive, highlighting specific terms or phrases that appear to urge aggression. In a video released just after the police had begun regaining control of the Capitol, they could also point to Trump’s comments: “We love you, you are very special.”

‘Trial by Combat’

Nevertheless, those remarks are “a far cry from inciting violence,” said Ediberto Roman, a professor at Florida International University College of Law. Giuliani, who called for a “combat trial” to resolve the election-fraud charges of the president, was “far closer to promoting violence,” Roman said, although it would also be difficult for the former New York mayor to sue successfully.

The norm of “high crimes and misdemeanors” to impeach trump under the Constitution is more versatile, and several Trump supporters have said he committed an impeachable offense by supporting the rioters, such as former New Jersey Governor Chris Christie. On Monday, House Democrats introduced a resolution to impeach The president for inciting the Capitol uprising, setting up a vote this week unless Vice President Mike Pence and a majority of Trump’s cabinet invoke the 25thAmendment to oust Trump from the Constitution.

But it’s unknown how many Republicans are going to want a politically challenging vote to oust their own party’s president. U.S. Senator Pat Toomey, speaking to CNN on Sunday, indicated that criminal prosecution could be an alternative to impeachment in terms of keeping Trump responsible.

Mixed signals have been sent so far by federal prosecutors. While Sherwin stressed that “all actors” were being scrutinized by the Justice Department, his top deputy, Ken Kohl, said the next day that he did not foresee charges against individuals who gave speeches at the rally. Ultimately, however, under President-elect Joe Biden, the decision whether or not to prosecute Trump would be up to the representatives of the Justice Department, who said he will appoint Merrick Garland, the federal appeals court judge, to be attorney general.

White House Subpoenas

Some former prosecutors say the actions of Trump provide ample proof of intent to warrant an investigation at least. To help United States investigators decide if Trump or his associates knew that any of the rioters had come to Washington bent on committing crime, a grand jury could subpoena internal White House correspondence.

Randall Eliason, a former assistant U.S. attorney in Washington, said, ‘I wouldn’t say it’s a slam dunk, but if I’m a prosecutor, I feel pretty good about my proof of motive.’ “Exactly what Trump wanted, the crowd did.”

It’s the same kind of proof that investigators are now scouring for individuals who were personally involved in the riot. Mike Shepard, a former Justice Department official, said that if they may discover rioters conspired with each other, they can use social media messages, email, and telephone correspondence, police reports of the actions and communications of rioters to try to support their cases. 

More than 50 participants in the Capitol siege have since been prosecuted by federal authorities, accused of several crimes ranging from trespassing to assault, and are now investigating the death of Capitol police officer Brian Sicknick as a murder.

A former federal prosecutor, Harry Sandick, said a number of the rioters could potentially face charges of engaging in a seditious plot involving two or more persons agreeing to use force, according to the legislation, to impede the enforcement of U.S. law or seize U.S. government property. The purpose of preventing Congress from certifying Biden’s election victory seemed to have many rioters in mind. 

“There is evidence of coordination by the rioters with each other on social media,” Sandick said. “There are also statements by the rioters that their actions were understood to be at the request of Trump.”