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Smoke fills the walkway outside the Senate Chamber as supporters of U.S. President Donald Trump are confronted by U.S. Capitol Police officers inside the Capitol in Washington on Jan. 6, 2021.

Manuel Balce Ceneta/The Associated Press

In the wake of Wednesday’s violent invasion of the Capitol building in Washington by supporters of President Donald Trump, the President himself is being widely blamed for incitement. What consequences, criminal and political, could he face? Globe and Mail justice writer Sean Fine explores the options.

President Trump asked his supporters to Washington, told them it would “be wild,” invited them to the Capitol and implored them never to accept a stolen presidency. Did he commit a crime?

The acting U.S. attorney for Washington said Thursday he is exploring those very questions, and insisted that anyone for whom “the evidence fits the element of a crime” will be charged. How serious could charges be? Inciting damage to federal property or aiding and abetting such damage is more likely than inciting insurrection, said Aziz Huq, a professor at the University of Chicago Law School. “I think sedition gets at something in the minds of many people who are averse to Trump but what is popular in people’s minds and what would likely work on the ground are two different things.” Claire Finkelstein, a law professor at the University of Pennsylvania, said the President could be charged with seditious conspiracy if he played a role in calling off the National Guard, or if more evidence emerges about incitement, but that the facts right now don’t seem to bear that out.

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Insurrection at the U.S. Capitol: What the pro-Trump mob did, how Congress responded and what happens next

Could the President pardon himself?

Possibly. The question is “shrouded in a kind of mist,” said David Landau, associate dean for international law programs at the Florida State University College of Law. “It’s never been tried. The text doesn’t qualify the pardon power other than to say it only applies to federal crimes. It doesn’t explicitly say the president cannot.” But some scholars argue it would be a conflict of interest.

And isn’t it a Pandora’s box to go after a president for his conduct in office?

There is a question of the public interest. “Typically, countries that engage in widespread criminal prosecutions where the ins go after the outs is not a place you want to be,” Prof. Landau said, adding: “Trump may be enough of a unique actor that things point in another direction in this case.”

If something similar happened in Canada, heaven forbid, what would be the fallout?

Toronto lawyer Brian Greenspan said it would almost certainly lead to criminal charges against a prime minister, opposition leader or other politician. “Our country would be outraged by it. We would not tolerate our leadership engaging in the encouragement of criminal conduct.” When you’ve incited violent acts, Canadian law treats you as if “you’ve committed the same violent acts,” he said. One possible charge in Canada would be aiding and abetting the violence. He said a lot of Canadian laws rely on the principle of “know or should have known.” And, objectively speaking, the President at the very least “ought to have known he was unleashing this fury.”

I imagine that the members of Congress who hid under desks and in a cramped room are not too happy with the President right now. But what can they do? They don’t need a criminal act to take action, do they?

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They can do plenty. And an abuse of power is enough. The Vice-President and cabinet, backed by Congress, can take Mr. Trump out of action for the remainder of his term, using the 25th Amendment to declare him unfit. And then Congress can keep him out permanently, using the impeachment process. Or members of Congress can just censure him, deploring his actions in a statement.

Is there time, with less than two weeks to go till president-elect Joe Biden is inaugurated on Jan. 20?

There are political and practical hurdles to taking action. But Prof. Landau thinks it should be attempted. The impeachment process could continue after the President’s term is over, he said. In his view, the dangers Mr. Trump poses, in his waning days as President and in any future attempt to regain the presidency, are severe enough to warrant these actions.

Which method would Prof. Landau choose?

Both. First declare him unfit. Then impeach to keep him out for good.

How do each of these processes work?

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The 25th Amendment was created after president John F. Kennedy was assassinated, and sets out procedures for replacing a president or vice-president in the event of death, resignation, removal or incapacitation. But it’s not as straightforward as it appeared on season 7 of the TV drama Homeland. First, it requires the vice-president and a majority of cabinet to declare in writing that the president is unable to carry out his duties (the vice-president then takes over). But then, if the president declares himself capable, he resumes his duties. Congress would have to vote and achieve a two-thirds majority to declare him unfit.

And impeachment? Haven’t we been there, done that?

Yes, President Trump was impeached once, by the House of Representatives, a year ago. He was then tried by the Senate, and acquitted. But the path could be trod again. (Nancy Pelosi, Speaker of the House, is threatening a second impeachment, if Vice-President Mike Pence and the cabinet don’t go the 25th Amendment route.) And a few Republicans appear shaken enough to consider conviction this time, Prof. Landau said. The vote to convict (which needs a two-thirds “super-majority”) and the vote to ban him (with a simple majority of 50 per cent plus one) might have to be done separately, though it is unclear, Prof. Landau said.

It’s hard to see Republicans taking action against President Trump, isn’t it?

Sharon Austin, a professor of political science at the University of Florida, agrees. “That would really be explosive for the Republican Party, especially for Mike Pence.” She doesn’t think even censure is likely. Indeed, the Associated Press reported on Thursday that an adviser to Mr. Pence said the Vice-President opposes the use of the 25th Amendment to remove Mr. Trump from office.

And what if the President misuses his power again in the next two weeks?

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Prof. Huq said the big question is whether he will try to usurp power, and how his subordinates would respond. For instance, “imagine him ordering the acting AG to indict Biden and [vice-president-elect Kamala] Harris on some concocted ground.” President Trump said early Thursday morning that he expects an orderly transition on Jan. 20.

There’s a significant number of Congressional Republicans who still back President Trump after the storming of the Capitol by a mob of his supporters Wednesday. Political scientist Stephen Farnsworth says some of these Republicans are utilizing Trump supporters to fuel their own ambitions, which will make deal-making by the Biden administration more challenging. The Globe and Mail

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