STEVE INSKEEP, HOST:
Who, if anyone, is to hold former President Trump accountable for the attack on democracy January 6. The ex-president escaped conviction at his impeachment trial. A bipartisan majority voted to convict, but not the two-thirds majority that the Constitution requires. Forty-three Republicans voted to shield the ex-president, although the Senate majority leader, Mitch McConnell, said that's not because Trump deserved it. McConnell embraced the notion that an ex-president could not be convicted under the Constitution, but then denounced Trump's actual conduct. The Republican leader said Americans predictably committed an act of, quote, "terrorism" because, quote, "they had been fed wild falsehoods by the most powerful man on Earth." And then McConnell said this.
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MITCH MCCONNELL: We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.
INSKEEP: OK. So could the legal system do what Senate Republicans would not? We've called a different McConnell, unrelated - constitutional scholar and former federal judge Michael McConnell. Judge, welcome back to the program.
MICHAEL MCCONNELL: Thank you, Steve.
INSKEEP: Can a former president be held liable through civil suits or criminal prosecution for the kinds of acts we saw leading up to January 6?
MICHAEL MCCONNELL: Well, certainly, if the facts bear it out. The president has no - the former president has no more immunity.
INSKEEP: Well, let's talk through the facts as we know them, then. Can - what criminal proceedings or civil proceedings could you imagine arising out of January 6, where the president for months claimed falsely that there was a stolen election, and then people rioted, and a number of people were killed?
MICHAEL MCCONNELL: Well, I think the district attorney in the District of Columbia - probably not the federal government, but the D.C. government - is very likely investigating the possibility of bringing criminal charges. The most obvious one would be criminal incitement. Now, that's going to present some of the same problems of proof of Donald Trump's intent that were problematic during the impeachment. But what's going to be different is that the DA is going to be able to subpoena witnesses and do a much more careful and extensive job of finding out all the evidence on that. It's still going to be an uphill fight for a criminal conviction.
On the other hand, people injured in the riot will almost certainly be bringing civil claims. Now, these would be very similar in substance to the criminal claims, but the standard of proof is going to - is much lower, that instead of having to prove all the elements of the crime, including intent beyond a reasonable doubt, a civil case is based on preponderance of the evidence, which just means more likely than not.
INSKEEP: Oh, we're thinking about famous cases in the past, like the O.J. Simpson case, where he was acquitted in the criminal trial but then had problems in civil trials. But I do have to ask about an additional complexity. You said that a former president loses any criminal immunity he may have had because he is a former president. But if he gets sued for millions of dollars, hypothetically, can he say, I was an official of the government at the time? I was just doing my duty. You shouldn't be suing me; you should be suing the federal government.
MICHAEL MCCONNELL: The - he may make that defense. I think it's going to be difficult for him to sustain that on the facts. It doesn't seem, at least to me, that in his attempts to overturn the election of various sorts - and especially on January 6 itself - that he was acting in his presidential capacity. It seems to me he was acting in his capacity as a candidate for president.
INSKEEP: What about the possibility of declaring that this president has, essentially, participated in an insurrection against the government and, therefore, is ineligible for public office, which is something the Constitution does say?
MICHAEL MCCONNELL: Yes, the reason people are attracted to that course is that Section 3 of the 14th Amendment provides that people who are - who have ever sworn an oath to defend the U.S. Constitution and then committed insurrection are barred from future office. I think that's going to prove very difficult for two reasons. One is that the standard for what an insurrection is is very high. Let me just read you - it's short. The legal standard is - it's whenever the laws of the United States shall be opposed or the execution thereof obstructed in any state by a combination too powerful to be suppressed by the ordinary course of judicial proceedings. Now, I think the last part of that is going to be hard to prove because this riot was suppressed in a matter of several hours. It doesn't seem to meet the definition.
But the second problem is procedural, which is that - some people think Congress can simply vote for this, but I think that's very unlikely, that I think would be an unconstitutional bill of attainder. So this would have to be brought as a criminal action in court with a beyond-a-reasonable-doubt standard. That doesn't sound like a very promising proceeding to me.
INSKEEP: In just about 15 seconds, do you think it's possible other unrelated criminal proceedings could touch this president?
MICHAEL MCCONNELL: Actually, I think that's the most likely thing to happen - the most likely in New York, where the DA has been pursuing financial claims completely unrelated to January 6.
INSKEEP: Judge McConnell, thanks so much.
MICHAEL MCCONNELL: Thank you.
INSKEEP: That's former judge and Stanford University scholar Michael McConnell, also author of the new book "The President Who Would Not Be King." Transcript provided by NPR, Copyright NPR.