Legal Liability Stemming from the Capitol Riot

Episode Notes

Transcript

Lawyer 2 Lawyer

Legal Liability Stemming from the Capitol Riot

01/23/2021

 

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Michael McAuliffe: I think that there’s a lot to work with and federal prosecutors in particular in the District of Columbia are surely now working feverishly in the task force with the Federal Grand Jury issuing subpoenas, gathering evidence and I think we’re going to see the work product soon enough.

 

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Alan Gassman: How much money would you want in exchange for going to prison for 10 years because you believed what your state told you? You believed what your state attorney general told you? If not for him you never would have gone to prison for 10 years. What is that worth?

 

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network

 

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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It Please The Court and have two books out titled How To Get Sued and The Sled. Before we introduce today’s topic, we’d like to take this opportunity to thank our sponsor, LEX Reception. LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and a 24/7 availability for law firms and attorneys. And as we celebrate the 59th presidential inauguration or our 46th president this January 20th, the White House U.S. Capitol and other federal buildings are currently surrounded by checkpoints, bridges are closed, there’s a seven-foot-high fence erected around the capital, there are 25,000 or so national guard troops minus about 12 and military vehicles patrolling the streets of DC all stemming from the riots at our capital just over two weeks ago now. Well since the riots, there have been federal felony arrests and charges brought against many of those who have entered the capital or committed related crimes on January 6th. But who else will be held legally liable for these riots the year ahead? President Trump, sponsors and planners of the pre-rally and the riot, members of congress, what about those who have incited violence or have spread misinformation through their social media channels? Today, on Lawyer 2 Lawyer, we’re going to be discussing legal liabilities stemming from the U.S. Capitol riots, federal felony charges and what lies ahead for all involved. And to help us do that, today our first guest is Attorney Alan Gassman, a board-certified planning and estate trust lawyer who practices at Gassman, Crotty & Denicolo. Alan is also a blogger for Forbes. He recently wrote about today’s topic in an article titled The Legal Fallout Expected After The Capital Riots. Welcome to the show Alan.

 

Alan Gassman: Thank you very much. I appreciate being here.

 

1. Craig Williams: And our next guest is attorney Michael McAuliffe from McAuliffe Law PLLC. From his role as a federal civil rights prosecutor almost 30 years ago to his most recent service as the state attorney for Palm Beach County, Florida. Corporate general counsel and now adjunct professor at William And Mary Law School and published novelist. Mr. McAuliffe’s professional experiences reflect his wide and far-ranging interests in serving communities and making a positive difference in the lives of those around him. Welcome to the show Michael.

 

Michael McAuliffe: Thank you. Happy to be with you.

 

1. Craig Williams: Well, Michael, let’s turn to you first and talk about just the generalities of legal liability that arises from rights. I mean I can’t believe I’m even saying that.

 

Michael McAuliffe: Well, it’s a complicated scene. Much like the riot itself. There are a myriad of statutes both in the DC criminal code and under federal law because it’s a federal district that might apply to the attack on the capital itself and then the tentacles of liability reach out beyond DC as a jurisdiction and could reach those who were planning or aiding or assisting in the riot, you know, beyond the borders of DC. There’s a pretty robust collection of laws that could apply to the violent attempted insurrection at the capitol.

 

1. Craig Williams: Right, and then I think they start with treason and go from there. There’s a slew of ones that I’ve seen people being arrested for. Well, Alan, let’s talk about what kind of civil liabilities may arise out of the capital riots. What players may be civilly liable beyond those that actually physically participated?

 

Alan Gassman: I think that anyone who knew or should have known that this election was not a fraud and who repeatedly said this election was a fraud, we should all go to Washington DC and complain about it. Knowing the past history of crime and knowing that people were being misled to go to this event and that this event would likely cause violence can be culpable.

 

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I think it may take some stretching and it’s going to take some jury trials, but I think a lot of families who are losing their loved one to prison for a few years are going to say, how and why did this happen? Why did my local for example republican party in my county sponsor these buses and encourage these people to go and these lawyers who were on the committee, who helped organize this event telling us these things. We relied on them. Please don’t put us in jail. We relied on these lawyers. And then I think you get that to a jury with whatever tort theories there are out there and we’re going to see some new law made. And we’re going to see some pretty interesting jury verdicts.

 

1. Craig Williams: Michael, I know you handle civil rights. What kind of civil rights violations do you see here?

 

Michael McAuliffe: Well, you know most of my civil rights career was as a criminal civil rights prosecutor at the Justice Department. Interestingly, I wrote an op-ed in the Sun Sentinel this past week and I had originally put in criminal civil rights violations and then just edited it out because it might raise more questions than it answered in my road map piece. But there are clearly in my mind anyway, potential criminal civil rights statutes 18 U.S.C. 245 protected activities that could apply you know, although you know, we’re talking about a whole collection of potential statutes and you can lose the forest for the trees in the discussion. There are ample statutes and particular criminal laws that might apply to the actions. But it all depends on developing admissible evidence to charge someone based on these technically probable cause but more ethically a reasonable belief that that admissible evidence would lead to a conviction based on proving the elements beyond a reasonable doubt. I’m not saying that there isn’t, I think that there’s a lot to work with and the federal prosecutors in particular in the District of Columbia are surely now working feverishly in the task force with the federal grand jury issuing subpoenas, gathering evidence and I think we’re going to see the work product soon enough. Not just the initial arrests which were mostly by complaint but the follow-on indictments that will provide a broader more detailed explanation of these activities.

 

1. Craig Williams: Alan, I looked at your article that you just published in Forbes and you mentioned that there is a balance between the first amendment free speech and the incitement of a riot and took a kind of a really nice picture of this Brandenburg test. Can you talk about that for us?

 

Alan Gassman: Sure. The U.S Supreme Court in 1969 put out what they called the Brandenburg test and the first question is whether the speech explicitly or implicitly encouraged the use of violence or lawful force. You’ve got to have a conclusion that it did encourage the use of violence. That may not be easy to read from the exact word said by people saying go down to Washington DC, we’re all fighters. But what was happening in social media at the time, what people knew people were reading and people were communicating, it seems to me that you can satisfy that first requirement. The second requirement, the speaker intends that his speech will result in the use of violence or lawless action. So, when these people were saying, yeah, you guys need to get up to Washington DC and protect our rights and go to these protests, was there an intent that there would be violence or lawless action? And I think you can certainly conclude that there probably would be just based upon previous situations where some people act out in these protests and it does become violent. So, that’s the second prong. The third prong is the imminent use of violence or lawless action is the likely result of the speech. Now, it doesn’t say how much violence and it doesn’t say how lawless the action has to be. You know, if they were pretty sure that people were going to start throwing rocks at police officers, that would be enough to satisfy this test and knowing the type of people that they were encouraging to go, knowing that there were ex-military folks who were on edge mentally. It was clear from the internet chatter and the Facebook and other communications that there were some you know, pretty dangerous people going up there and getting really riled.

 

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So, I think you do satisfy that prong, the imminent use of violence or lawless action as the likely result of the speech. Now, maybe they didn’t expect that it would be beyond throwing some rocks at police, they probably didn’t expect that it would be crashing the windows of the capitol building and going in there. But that’s not what the test says, the test would be satisfied by a lower standard. That’s just the way I look at it as a citizen. I’m not a criminal law specialist. I’m not a litigation law specialist. I’m a tax lawyer who has a Forbes blog, but I did a lot of reading and if I could be on a jury and I could be given these instructions and I think that’s the way I would go.

 

1. Craig Williams: Well, Michael, let’s talk about the people that are going to be facing those jury instructions. Certainly, the people that have been arrested so far which there have been several hundred I think or so, and it looks like anybody who shows up on a video or is on their Facebook or Instagram bragging about being at the capitol is going to get arrested. But how far can these subpoenas reach? How far can the indictments reach? Are we going to be seeing charges against Senator Cruz? Against Senator Hawley? Certainly, Mitch McConnell’s words implicated some powerful people when he talked about the mob being fed lies. Where do you see this headed?

 

Michael McAuliffe: Well, I’m first not in the prediction past time, so I’m not going to make particular outcome suggestions or predictions. But you know, this is all an exercise of the process. Much like democracy itself, so the criminal justice system is predicated on gathering evidence, making sound and ethical prosecutorial decisions about charging and then ultimately presenting admissible evidence to a jury if it isn’t resolved before then. I think that you’re going to see, well I think we already have seen a proactive effort to define the parameters of the investigation in a very large comprehensive manner. The site being DC and the vehicle being a federal grand jury. And I think we won’t know it right away because federal grand juries are secret by law, but they are working hard to gather evidence both documentary, visual, recordings and then testimonial live witnesses. I think you might see conspiracy charges starting to be reflected in successive or waves of indictments. There may not be an overarching single conspiracy here but several related or complementary criminal conspiracies and the numbers are fairly large in terms of several thousand people on site. They may have different designs and different levels of knowledge and awareness. You know, Trump puts himself at the scene at least at the start of this attempted insurrection and then he plays a part through it. He’s not at the capitol physically but he surely one can argue is at the capitol metaphorically and then I’d want to know who he talked to beforehand. I’d want to know what did he watch during the early afternoon hours of the attempted insurrection and occupation of the capital. What knowledge did he have leading to his statement? He assumed he had control over his followers because he tells them to leave and then he tells them he loves them. So, you know there’s a lot of material to work with. I’m not prejudging it, I’m not the prosecutor on the case so I guess I can weigh in a little more in terms of opinion than others who are actually doing the real work. But that’s how I as a former prosecutor see some of the methodology of how the case develops and how it may play out in public one day.

 

1. Craig Williams: And Alan, how far does the civil liability reach? I mean do we have any Palsgraf problems here?

 

Alan Gassman: We may, we may. The foreseeability of the damages and the duty. There were some employers who sent their employees wholeheartedly and contributed to pay for their trips. There were as I said, republican organizations who encouraged people to go. I think they’re going to have a pretty direct link. I don’t know that there’s any case law that says that a public figure has a duty to not speak untruths that are known to propel civil unrest. I don’t know that we’ve ever had this extreme of an experience to test our tort system with respect to that.

 

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But if there ever was going to be an extreme experience to test our tort system with respect to this, this is going to be it. I expect the suits to occur, you know, for no other reason that personal injury lawyers would probably like the publicity of bringing them and families facing jail time probably think that it’s you know, a good thing to do.

 

1. Craig Williams: Well, gentlemen before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor. We’ll be right back.

 

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1. Craig Williams: Eighty percent of callers who reach voicemail hang up. Hiring an answering service means that you never miss a lead. LEX Reception can take your calls live and a legal intake and schedule appointments in a professional manner for less than the cost of hiring an in-house employee. There are no contracts and the service is quick and easy to set up. For 50% off your first month’s service, visit lexreception.com/lawyer2lawyer.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Attorney Alan Gassman from the Law Firm of Gassman, Crotty & Denicolo and Attorney Michael McAuliffe from Law Firm of McAuliffe PLLC. We’ve been talking about the criminal and civil liability that flows from the U.S. Capitol riots. Michael, we’ve got the killing of at least a police officer here. We have four or five deaths. A suicide that’s resulted from the riots so far. What elements do those types of charges add in to what we’re going to be facing?

 

Michael McAuliffe: Well, I think it deepens the matter. You know, we talked about the breadth of the investigation and obviously a killing is at the deep end of the seriousness of the criminal acts themselves. And you know, even short of homicide, you know, could be an assault on a federal officer. I am confident that there are dozens of examples that may have been captured on tape or by eyewitnesses. There’s firearms offenses under federal and the local DC code. So, you have the homicide itself of the capital police officer and then you have aiding and abetting that homicide. It could be that if you’re engaged in a felony that then results in the death of someone, that’s where the felony murder rule comes into play. So, there is as we talked about earlier, there is a vast collection of potential prohibitions that could apply to the actions and part of the challenge here is to organize the evidence, identify the subjects and targets and then make careful charging decisions based on the evidence that you want to capture the wrongfulness and the evil of the actions. But you want to also comport with the rules of the road and the first among which is the first amendment. Now, clearly, there’s a big distance between killing a federal officer and your protected first amendment rights and the exercise thereof. But for some individuals who are present, it’s going to cut a finer line as to what’s criminal and what’s protected and you know, I’m hopeful and confident that the U.S. Attorney’s Office in DC is fully capable of doing. So, you know, carefully and with a commitment to make this one of those proverbial statement cases. If there was ever a statement case brought by the United States, this would be it.

 

1. Craig Williams: Looks like they’re going to be also assigning some of the best prosecutors to it.

 

Michael McAuliffe: That would be the logical move in my opinion. We will likely see there was an acting U.S. attorney in DC. I haven’t heard whether today that person should have had a standing letter of resignation effective on January 20th, so we’ll see who the new acting is and they certainly have a good talent pool both in DC and at main justice to pull from to make sure that you’ve got effective advocates working on behalf of justice and accountability.

 

1. Craig Williams: Well, Alan, let’s kind of toss that similar question over to you. Who are we looking at on the civil side as potentially liable? Do you think that’s going to extend to senators and into the government? I know you talked about the people that were the organizers but how far can that actually reach?

 

Alan Gassman: You know, I’m wondering about you know, if you lived in Texas and the State of Texas brought that suit to overthrow election fraud that never occurred, and you relied on your state government to determine that you had to go to Washington DC to save your country from this terrible ordeal, would you not have a cause of action against your state government that could be set aside and then can the tort immunity of state law be set aside by a legislature? I mean I think the aggressive personal injury lawyers are going to go as far as they can and they should test every layer.

 

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1. Craig Williams: What do you think about the damages? What kind of damages are we going to be talking about? Are people you know, loss of life?

 

Alan Gassman: Yeah. How much money would you want in exchange for going to prison for 10 years because you believed what your state told you. You believed what your state attorney general told you. If not for him, you never would have gone to prison for 10 years. What is that worth in front of a jury? The punitives could be very, very large here. Punitives against President Trump, because you know when you calculate punitives, it’s based in part on the net worth of the player. What kind of punitives would there be against President Trump? It could be some pretty big numbers.

 

1. Craig Williams: Sufficient to punish and make an example. Right. So, Michael, what time frame are we looking at? How long during the Biden administration will this investigation take? I mean look at Benghazi and some of those issues that we’ve seen in the past, but do we expect congress to be jumping into this along with all of the criminal prosecutions they are facing?

 

Michael McAuliffe: I suspect there’ll be several parallel proceedings occurring. It could be congressional inquiries, it could be internal inquiries, you know, within congress, looking at itself not the public commission type inquiries. The criminal justice investigation is hampered in part by the fact that we’re living in a crisis environment with COVID, with the pandemic. So, grand juries haven’t been regularly meeting in most districts in the United States since last mid-March maybe. And I think that you know, we’re still in the throws and the thick of the pandemic. I think with the availability of the vaccine, you could see if you got vaccines available, you did the summonses for the grand juries, you could constitute even a special grand jury to sit for the purpose of this investigation and you would in essence vaccinate the membership. You know, just sort of thinking off the top of my head as to how would you constitute the investigative body in a way that would be regularly meeting and available instead of on an ad hoc basis. So, the answer about the time frame is that it’s fairly open-ended. I mean there are certain statute of limitations that presumably will never come to issue. But I think that it would be wise for the investigators and prosecutors for the public’s sake, for everyone involved just to take their time to do it right so that in the end we have publicly available charges that are specific, that are supportable by admissible evidence. And then the proceedings themselves of course have the great advantage of transparency and rules that in this environment, the artificiality of the courtroom may actually be a great help and benefit to holding those accountable both with the charges themselves but also just in terms of how the public perceives those proceedings.

 

1. Craig Williams: Alan, we’re recording this on the day of President Biden’s inauguration. There was a lot of fear whether there would be any kind of drama at the capitol building or any one of the state courthouses which appears to have kind of petered out. Where do you see this insurrection movement going? Are you sensing that it’s going to continue and we still have fights to make or have we come close to defeating it?

 

Alan Gassman: I think it’s going to go back down to what it was before President Trump was elected. I think a lot of things that were going on in society and that people were thinking were unsightly and below the surface. I think it came up from the surface and a lot of us learned the nasty stuff that’s out there, but I also think that of course got exacerbated terribly by his communications and his style and his intention. I think a lot of the people who found themselves in that movement now realize that they were taken advantage of. So, I’m hopeful that things will go back to pretty much what they were. I was very glad to see that nothing happened today that would cause any heartache. You know, when I first started practicing law in 1984, a local Jewish client of mine bought a property from the Klu Klux Klan to get them out of Dodge and that was part of the deal. I’ll buy your property; I’m going to build a shopping center there. You guys close down your Ku Klux Klan here and they did, you know that stuff’s out there. It’s going to continue to be out there but I don’t think that we’re in great danger. I think it was an aberration. It was a weird event and I think most of the people who were involved with that riot were just a little bit mentally unsound, a little bit too enthusiastic, a little bit overheated and definitely either misled or felt that they were completely justified doing what they were doing because an American president was telling them it was okay.

 

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1. Craig Williams: Right.

 

Alan Gassman: I don’t think we’re going to have another American president ever do that again. Maybe I’m a foolish optimist but that’s my thinking on it.

 

1. Craig Williams: Great, well gentlemen it looks like we’ve just about reached the end of our program. So, at this point we’d like to take the opportunity to have you share your final thoughts as well as your contact information, brag on your books and your articles. So, Michael, let’s throw it to you first.

 

Michael McAuliffe: Thank you Craig. Very much happy to be with you and then participate in this conversation. I would say that the one message that I would like to share with the listeners is that our big challenge as a country is to face our whole selves, not just our lesser selves or our better natures but as our culture and our system and its ugliness and its possibility. I have a novel that came out last spring, bad timing, but it’s called No Truth Left To Tell and it’s about my experiences investigating and prosecuting the head of the Ku Klux Klan in Louisiana almost 30 years ago. And about a town trying to address its past that has suddenly become its present. So, it seems somewhat familiar to some of our conversations today. So, thank you for having us.

 

1. Craig Williams: Thank you, and Alan, your final thoughts and your contact information?

 

Alan Gassman: My final thought is that our country needs a lot more people like Michael who are intellectually sound, realistic and roll up their sleeves and make this a better country. I think there’s a lot of people like that in the country and coming from a tax lawyer in Clearwater, Florida listen to people like Michael, not people like me.

 

1. Craig Williams: Well, I think both of you are great guests and I’d like to thank Alan Gassman and Attorney Michael McAuliffe for joining us today. It’s a pleasure having you both on this show.

 

Michael McAuliffe: You’re welcome.

 

Alan Gassman: Thank you.

 

1. Craig Williams: Thank you, and for our listeners, if you like what you heard today, please rate us on Apple podcast, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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