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 closed the speech, the cry to “give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country” – set the force in motion. So, too, did the cry, “We fight. We fight like hell. If you don’t fight like hell, you’re not going to have a country anymore.”
Yet, like too many wise criminals, he used the ‘wink and a nod’ method of speech, with ambiguity and cover words that may make a finding of criminal intent difficult. Trump bracketed his calls to march on the capital with one call for “peace:”
Everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.
But this does not end the inquiry as to whether Trump solicited others to act criminally – it just requires a deeper investigation. Solicitation to commit violent acts may be found where there “strongly corroborative circumstances,” 18 U.S.C. 373, and intent may be proved circumstantially. Was the President briefed by anyone – intelligence officials, law enforcement, his own political operatives – on the plans of his followers? What social media posts did the President read and retweet? Is there any proof that the language used was ‘code’ and understood as such by Trump? Was there a history of other ‘urgings’ by the President that he knew had prompted his followers to violent acts?
There is a second criminal offense that needs less investigation. It is the conduct of Trump after the insurrection began. The specific crime is that of using interstate communications – here, by tweeting – to “promote [or] encourage” a riot.
What is a riot? Federal law has a simple definition:
An act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual.
18 USCS § 2101.
What was the encouragement? Trump’s first tweet tacitly approved the continued presence in the Capitol. “I am asking for everyone at the U.S. Capitol to remain peaceful,” Mr. Trump wrote. “No violence! Remember, WE are the Party of Law & Order — respect the Law and our great men and women in Blue. Thank you!” At a minimum, that encouraged the continued presence of the rioters. And the second tweet of the afternoon expressly condoned the behavior, even if arguably urging people to eventually cease and desist:
“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long,” he wrote. “Go home with love & in peace. Remember this day forever!”
One more principle of criminal liability cries out for examination: the failure to act when there is a duty to do so. Federal law is imprecise about when a failure to act may be a basis for criminal liability – to some courts, it is only if the statute by its terms includes liability based on an omission; but in others there is a broader acceptance that “a legal duty to act may also be imposed by contract or tort law, and also because of a relationship between the defendant and another person that makes the defendant responsible for the safety and well-being of another person…” [Third Circuit Criminal Jury Instructions, 5.10, Comment.]
What is the express duty of the President? The Constitutional oath that Trump took requires him to “preserve, protect and defend the Constitution of the United States.” Part of that Constitution involves the ability of the Legislative Branch to conduct its business; and a more explicit part is the Twelfth Amendment’s command that Congress count the vote for President and Vice-President.
The crimes detailed above – solicitation and riot – require proof of a specific intent that the act or harm occur. That mindset may be difficult to prove, but are there grounds to investigate criminal culpability? Absolutely. And it bears noting that Washington D.C. has its own criminal code provision for those who intentionally or recklessly “incite or provoke violence where there is a likelihood that such violence will ensue.”
At the end, would proving such a case be easy, especially given the arguable ambiguity of Trump’s tweets? Potentially. And it is unethical to bring charges unless the prosecutor reasonably believes that “admissible evidence will be sufficient to support conviction beyond a reasonable doubt.” ABA Criminal Justice Standards, Prosecution Function 3-4.3(a).
Congress will decide whether Trumps acts and/or omissions meet the impeachment standard of “high crimes or misdemeanors,” a phrase that has been convincingly shown to extend beyond codified criminal prohibitions. Should Trump be sued for wrongful death or property loss or damage, he may be subject to liability for reckless conduct. But it is essential that these charges be investigated in a case that resulted in at least five deaths and a rending of the fabric of democracy.