What they actually did, according to legal scholars, is lay the groundwork for a potential criminal indictment against Trump for inciting the insurrection. At the behest of the District of Columbia’s federal appellate court, the DOJ last week submitted a legal memo weighing in on a civil dispute by injured police officers. Trump’s legal team is already gearing up for a fight over allegations that he broke the law by inciting a riot. However, sources briefed on DOJ special counsel Jack Smith’s criminal investigation say they're more concerned about potential charges of conspiracy to defraud the United States. “A criminal case would have no chance because of the higher burden of proof,” Saltzburg said.