Author: Jules Epstein

U.S. Capitol building in black and white

Soliciting or Encouraging Sedition

What is Donald Trump’s culpability for the January 6th assault on the Capitol?  Morally, it is clear – Trump is a sentient being, aware of risks and consequences, who acted with disregard for the lives and well-being of others. Causally, the case is strong – in the terms of proximate cause and foreseeability, he spent months agitating and stirring discontent, he knew the volatility of his audience, and the actions of his followers were “not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.” 1 W. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003). And in the eyes of history, culpability is beyond question – the “buck stops here” principle is the metric. But is he criminally responsible? Are there acts worth investigating, are there provable criminal acts attributable to the President? The President’s speech at the pre-insurrection rally may not, on its face, be sufficient to prove solicitation to commit a crime – here, riot, assault, theft, or damage to property. The language that …

Law & Morality

Judging the immorality of the four police officers charged with the death of George Floyd is easy. Mr. Floyd was handcuffed and on the ground, with four armed officers over him. All the police had to do was listen and stop – he would still be handcuffed, he would still be unable to harm them; but he could be permitted to breathe anew. Ignoring that, or not intervening or at least protesting a fellow officer’s behavior, is indisputably inhumane. But the criminal law and morality lack a perfect overlap. What warrant examination are the charges that have been brought and whether and how they can justly apportion legal blame. Minnesota Attorney General Keith Ellison, after announcing charges against the four officers, cautioned that “[w]inning a conviction will be hard…because history shows that trying and winning a case like this one is hard.” General Ellison was referring to the historic reluctance of jurors to convict police acting in the line of duty in what are often fraught circumstances, especially where the deceased is a racial minority. …