Trump still might face punishment for Capitol riot even after Senate impeachment acquittal

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Trump acquitted in impeachment trial - Again

University of Baltimore law professor Kimberly Wehle and former Deputy Independent Counsel Sol Wisenberg weigh in on 'America's News HQ'

Former President Donald Trump on Saturday, after the Senate acquitted him of the impeachment charge against him, teased a return to the political arena in his post-presidency -- but he may still face efforts to punish him for the Jan. 6 attack on the Capitol by his supporters. 

The Senate failed to reach the 67-vote threshold to convict Trump on inciting an insurrection as charged in the House's article of impeachment. There were 57 votes to convict and 43 "not guilty" votes. 

"Our historic, patriotic and beautiful movement to Make America Great Again has only just begun," Trump said in a statement following the vote. "In the months ahead I have much to share with you, and I look forward to continuing our incredible journey together to achieve American greatness for all of our people."

But in the coming weeks and months, Trump could also be facing continued efforts to hold him accountable for allegedly inspiring a mob of his followers to storm the U.S. Capitol during the Jan. 6 joint session to certify the presidential election results. The rioters defaced the building and forced hundreds of lawmakers and former Vice President Mike Pence into hiding as they chanted "hang Mike Pence," among other things.

FILE - In this Wednesday, Jan. 6, 2021 file photo, supporters of President Donald Trump climb the west wall of the U.S. Capitol in Washington. (AP Photo/Jose Luis Magana)

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"There's no question ... that President Trump is practically and morally responsible for provoking the events of the day," Senate Minority Leader Mitch McConnell, R-Ky., said after the Senate vote that acquitted Trump. McConnell voted that Trump was not guilty. But he said his vote was not a reflection on Trump's actions and instead was an expression of his opinion that the Senate did not have the authority to hold an impeachment trial for a private citizen. 

McConnell added that the attack "was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth."

"President Trump is still liable for everything he did while in office," McConnell continued. "He didn't get away with anything yet. We have a criminal justice system in this country. We have civil litigation."

Indeed, there's an open criminal investigation in Georgia into the call Trump made to Georgia Secretary of State Brad Raffensperger, a Republican, pressuring him to "find" enough votes to flip the result of Georgia's presidential election away from President Biden.

US President Donald Trump speaks to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC.  ((Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images))

And some Democrats are also pushing for a separate way to bar Trump from office in the future now that impeachment failed. 

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"I do think that we need to spend months and months unearthing all the evidence that can possibly be gotten to through a 9/11-style commission," Sen. Chris Coons, D-Del., said on ABC's "This Week" on Sunday. "And a number of Republicans have already come out and said there should be further accountability, whether through a criminal trial or through some other path towards being barred from office."

Coons appeared to be alluding to the 14th Amendment, which some Democrats say could be used to bar Trump from running for office again. The amendment was passed in the wake of the Civil War and aimed at preventing former U.S. officeholders who defected to the Confederacy from holding office in the U.S. government again. 

It bars people "who, having previously taken an oath, as a member of Congress, or as an officer of the United States ...  shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The amendment gives Congress the power "by appropriate legislation" to enforce this. 

Some Democrats, therefore, interpret this as a way to ban Trump from office without clearing the 67-vote hurdle of an impeachment conviction. 

Senate Majority Leader Chuck Schumer, D-N.Y., was asked about using the 14th Amendment last week and declined to rule it out. 

Trump attorney Michael van der Veen dismissed the possibility that Trump could face any accountability in the future in an interview with CBS News, saying that McConnell's comments specifically were just blustering. 

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"No, that's just political rhetoric. And I was hopeful that something would come out of this that the political rhetoric would stop out of Washington D.C. But I guess apparently it hasn't," he said. "I'm not surprised to hear a politician say anything at all, no."

Many Republicans in the past few weeks have also floated the idea of passing a censure resolution against Trump -- legislation that would simply express the sense of Congress that what Trump did was bad. 

House Speaker Nancy Pelosi, D-Calif., dismissed the idea in a press conference Saturday however as giving Republicans a chance to say they condemned the former president without actually taking a tough vote with consequences. 

"Censure is a slap in the face of the Constitution. That gives, lets everybody off the hook. It lets everybody off the hook," she said. "All these cowardly senators who couldn't face up to what the president did and what was at stake for our country are now going to have a chance to give a little slap on the wrist? We censure people for using stationary for the wrong purpose. We don't censure people for inciting insurrection that kills people in the Capitol."

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Meanwhile, members of both parties are supportive of a 9/11-style commission to investigate what led up to the Jan. 6 attack. This commission would not necessarily have the power to punish the former president or anyone else. But it would, according to Coons on "This Week," "lay bare the record of just how responsible and how abjectly violating of his constitutional oath President Trump really was."

Sen. Chris Coons, D-Del., speaks as the Senate Judiciary Committee hears from legal experts on the final day of the confirmation hearing for Supreme Court nominee Amy Coney Barrett, on Capitol Hill in Washington, Thursday, Oct. 15, 2020. (AP Photo/J. Scott Applewhite)

Sen. Lindsey Graham, R-S.C., on "Fox News Sunday" said a commission would help clear up how there was so little security at the Capitol on Jan. 6 despite what apparently were repeated warnings that Congress could be in danger. 

"Did Nancy Pelosi know January the fifth that there was a threat to the Capitol? What did President Trump do after the attack? We need a 9/11 commission to find out what happened to make sure it never happens again," he said. "And I want to make sure that the Capitol footprint, can be better defended next time so I want to look at what Pelosi knew when she knew that what President Trump did after the attack and on the Senate side was Senate leadership informed of a threat."

He added: "I'd like to know, did the Capitol Hill Police inform the House sergeant at arms and the Senate sergeant at arms the day before the attack that they needed more troops so I want to look at all of it."

But Graham also explicitly rejected the idea that Trump could face further repercussions for his actions, which included months of false claims that he won the presidential election leading up to his Jan. 6 speech, which he said ahead of time would be "wild."

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During that address, Trump told supporters to march "peacefully and patriotically" toward the Capitol. Defenders point to that comment as a reason why Trump was not responsible for the ransacking of the Capitol. But those who supported his impeachment said that comment did not outweigh the balance of his rhetoric after the election, which Graham himself said Sunday was "over the top."

Graham, however, did not go as far as McConnell in condemning Trump wholesale and alluding to potential criminal charges for the former president. 

"Now I think Sen. McConnell's speech he got a load off his chest, obviously, but unfortunately he put a load on the back of Republicans," Graham said of McConnell's speech. "I would imagine if you're a Republican running in Arizona or Georgia or New Hampshire where we have a chance to take back the Senate, they may be playing Sen. McConnell's speech and asking you about it as a candidate. And I imagine if you're an incumbent Republican, they're going to be people asking you 'will you support Sen. McConnell in the future?'

Graham added: "I think his speech is an outlier regarding how Republicans feel about all this."

Fox News' Kelly Phares contributed to this report.