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Donald Trump may be in real trouble from new civil and criminal cases

Former President Donald Trump speaks at the Conservative

Former President Donald Trump speaks at the Conservative Political Action Conference on Feb. 28, 2021, in Orlando, Fla.  Credit: AP/John Raoux

Recent statements by Donald Trump and his enablers prove that he and his Big Lie that the 2020 election was stolen aren't departing from American politics anytime soon. But neither is the push to hold him legally accountable, as shown by a new lawsuit - the second against Trump by a member of Congress arising out of the failed Jan. 6 insurrection. As attorneys who have overseen prosecutions or other accountability efforts in Republican and Democratic administrations alike, we believe the combination of civil cases and a pair of rapidly accelerating state criminal investigations make for a potent force to combat the ex-president's ongoing wrongdoing.

The new litigation, filed Friday by impeachment manager Rep. Eric Swalwell, D-Calif., alleges that the former president, his son Don Jr., his lawyer Rudy Giuliani and Rep. Mo Brooks, R-Ala., conspired to prevent Swalwell and other members of Congress from discharging their duty to certify that Joe Biden had won last year's presidential election. The complaint says the defendants engaged in an extensive, months-long promotion of the Big Lie, capped off by Trump's fighting words and the violence that followed on the day of the electoral vote count.

Such alleged conspiracies are prohibited by the Ku Klux Klan Act, which was passed during the Reconstruction era to fight efforts to block public officials from performing their duties. The new suit joins the pending one initiated by Rep. Bennie Thompson (D-Miss.), who is also suing the former president and Giuliani, as well as the Proud Boys and the Oath Keepers on similar grounds.

Both cases are assigned to the same capable and speedy D.C. federal judge, Amit Mehta, and Trump's first deadline to answer is approaching next week. So the floodgates of civil litigation are now open. Once preliminary motions are over, we can expect a rush of new information to add to the public record of the events leading up to and including Jan. 6, perhaps further implicating the former president and his cronies. And the financial claims against Trump will accumulate, too. Because of the potentially vast damages that can be awarded by D.C. juries for the very severe wrongdoing alleged, these civil actions have the capacity to financially break even wealthy individuals like the Trump and some of his alleged co-conspirators.

But as important as civil accountability is, Trump faces an even more immediate set of legal troubles that threaten to complicate his attempted reemergence into public life. Recent days also saw the delivery of long-sought tax and financial information to Manhattan District Attorney Cyrus Vance Jr. as part of an investigation into Trump's many alleged misdeeds in New York City's jurisdiction, including bank and tax fraud. That should greatly accelerate the long-running investigation. So too should Vance's recent hiring of a top deputy with extensive experience trying complex criminal matters, Mark Pomerantz. He and Vance are reportedly sharpening their focus on the Trump Organization's chief financial officer, Allen Weisselberg, whose cooperation could also speed up the case.

And Vance is not alone in investigating criminal liability - there's a matching criminal threat from Fulton County, Ga., District Attorney Fani Willis over Trump's call to ask that the secretary of state in Georgia "just . . . find 11,780 votes" to help Trump beat Biden. This is a more recent investigation, but it's also potentially much less complex than the case in Manhattan, now in its third year. As a result, the Fulton County investigation may move even faster. Indeed, a grand jury met in the Georgia investigation last week, and Willis recently added a nationally recognized racketeering expert to her investigative team. Look for the New York and Georgia probes into criminal liability to close in on Trump.

Of course, Trump would not be Trump without his many legal enablers, and they, too, are facing mounting troubles for their part in spreading the Big Lie. Judge James E. Boasberg of the D.C. District Court recently referred attorney Erick Kaardal to a court grievance committee for potential punishment because Kaardal filed an allegedly bogus case attacking the November election results. Two Georgia counties have recently filed to recover legal fees stemming from the Trump campaign's frivolous lawsuit to overturn the state's election results. They are the latest in a nationwide series of actions seeking sanctions against the attorneys who presented allegedly voluminous election falsehoods to the courts, including multiple bar complaints against Sidney Powell and Giuliani. Giuliani is beset with even greater challenges: Late last week, news reports indicated that federal prosecutors in Manhattan had resumed their investigation into whether he broke federal law in his Ukraine dealings, which helped lead to Trump's first impeachment.

In light of all this court action, Trump may come to regret his recent CPAC speech filled with debunked lies, such as that "this election was rigged," and that there were "more votes than they had people voting" in Michigan and Pennsylvania. The ex-president's behavior at issue in the cases does not end on Jan. 6, or even Jan. 20, when he left office. The law allows post-wrongdoing acts to be admitted if they bear upon relevant issues such as motive or a lack of remorse. As civil and criminal proceedings press forward, the CPAC speech and others like it could be admissible in court as evidence to shed light on Trump's intent in inciting the attack on the Capitol.

This is to say nothing of the other ongoing investigations into the events of Jan. 6 that could continue to implicate Trump. House Speaker Nancy Pelosi's proposed commission to look into the riot remains under consideration, and in the meantime, standing congressional committees are investigating the events of that day as well. Whether through the special commission or otherwise, Congress's findings will illuminate Trump's full role in the incitement of political violence.

Then there is the sprawling federal criminal probe into Jan. 6. It has already resulted in nearly 300 cases, and investigators have said that all potential defendants are subject to review. Last week, FBI Director Christopher A. Wray testified before the Senate Judiciary Committee that the agency was pursuing roughly 2,000 domestic terrorism cases across the country, representing a huge spike in such investigations. That attention and focus cannot be good news for the former president.

Trump was able to delay personal accountability during his term in office by using the presidency itself as a shield. He argued that Article II of the Constitution prohibited him from being investigated, stalled legal proceedings and treated the Department of Justice as his own personal law firm. And his allies in the halls of Congress spent four years either agreeing with Trump's assessment of immunity or choosing the compliance-through-silence option, including by acquitting him at two impeachment trials despite his evident culpability.

Today, however, Trump is a private citizen. His friends in Congress are less reliably loyal. He must defend himself. This is not to say that exacting justice will be easy - as a private businessman, Trump was notorious for using the law as a weapon. But the walls seem to be rapidly closing in. If they do, they may finally mark an end to the ex-president's involvement in our public life. It is not easy to be involved in politics if you are broke and in jail.

Donald Ayer served as U.S. attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H.W. Bush. He serves on the Voter Protection Program's bipartisan advisory board.

Norman Eisen was President Barack Obama's "ethics czar" from 2009 to 2011 and ambassador to the Czech Republic from 2011-14. He is a senior fellow in Governance Studies at Brookings and serves as counsel for the Voter Protection Program.