It’s Not Just the Attack on the Capitol

The “Select Committee to Investigate the January 6th Attack on the United States Capitol” has a slight branding issue: it turns out the Committee’s investigation and hearings into the conspiracy to overturn the election are not primarily about the attack on the Capitol.

The first hearing did focus on the January 6 attack, and was dominated by the riveting and horrifying video montage of footage from that day. But the second hearing focused on the many times Trump was told the election fraud claims were bogus – none of which happened on January 6. The third hearing was about the pressure campaign on vice president Mike Pence, most of which took place prior to January 6. The hearing on June 21 focused on Trump’s efforts to pressure state officials to overturn their election results — all of which happened prior to January 6. The same will be true of other hearings.

This is as it should be. A need to investigate the attack on the Capitol is, of course, what led to the Committee’s creation. But as the Committee’s investigation and hearings have unfolded, it’s become increasingly clear that the assault on the Capitol building was merely the bookend to a much broader conspiracy that unfolded over the weeks between election day and January 6.

In the context of that broader conspiracy, the physical assault on the Capitol, as terrible as it was, was not the most significant event. It was not critical to the conspiracy’s potential success. Even without the assault, the efforts to overturn the election were still potentially criminal and still could have succeeded. And in the long run, the events that took place prior to January 6 are actually more dangerous — because they are easier to repeat, and harder to detect.

Conspiracy street sign

The Language of Conspiracy

The Committee has promised that its hearings will demonstrate a “coordinated, multi-step effort to overturn the 2020 presidential election”. That is the language of conspiracy. And indeed, the most likely criminal charges would be conspiracy to obstruct a Congressional proceeding and conspiracy to defraud the United States.

In civil litigation involving the Committee’s efforts to obtain the emails of former Trump attorney John Eastman, a federal judge in California has already ruled there is evidence that Trump and Eastman likely committed those crimes. The standard in a civil case is far lower, of course, so that ruling alone does not prove a crime was committed. But it’s significant that a federal judge saw the facts that way.

The evidence required to prove these two crimes would be very similar. The central allegation would be that, through a series of actions, the conspirators corruptly sought to prevent or delay the Congressional certification of Joe Biden’s election victory at the joint session of Congress on January 6. Unlike the charge of seditious conspiracy (filed against the white supremacist groups the Proud Boys and Oath Keepers), these charges do not require the government to prove that the conspirators intended to use force to achieve their goals.

Conspiracy to obstruct a Congressional proceeding would be charged under 18 U.S.C. 1512(c)(2) and 1512(k). It’s a twenty-year felony. It requires the government to prove that the defendants conspired to corruptly obstruct, influence, or impede any official proceeding, including a proceeding in Congress. More than 200 of the rioters who actually attacked the Capitol on January 6 have been charged with this crime.

Many of those charged under 1512 have challenged their prosecution on various grounds, including claiming that the joint session of Congress was not an “official proceeding” within the meaning of the statute. About a dozen federal judges in D.C. have rejected that argument, with only one judge agreeing with the defendant and dismissing the charge. That issue is bound for the D.C. Circuit Court of Appeals and perhaps the Supreme Court, but I believe the law is on the government’s side.

A conspiracy to defraud the United States under 18 U.S.C. § 371 requires the government to prove that the defendants conspired to defeat, obstruct, or impede a lawful government function of the United States through corrupt or dishonest means. This was a leading charge in the indictment obtained by special counsel Robert Mueller of the Russian agents who interfered with the 2016 presidential election through social media and other methods. Mueller charged that, through those actions, the defendants conspired to defeat the lawful functions of the State Department, Federal Election Commission, and Justice Department.

One benefit of this charge for prosecutors is that it does not require proof that the defendants’ conduct was otherwise criminal. So, for example, if a court got hung up on the “official proceeding” requirement of 18 U.S.C. § 1512 and decided that statute did not apply, conspiracy to defraud the U.S. under §  371 could still be used to prosecute essentially the same conduct.  

Both of these potential crimes have another significant thing in common: most of the acts done in furtherance of the alleged conspiracies were carried out prior to January 6, by individuals who did not personally storm the Capitol building.

Rep. Liz Cheney
Rep. Liz Cheney (R – Wyo)

The Conspiracy to Overturn the Election

Conspiracies often involve the conspirators following different avenues to try to achieve their overall criminal goal. Different co-conspirators may have different tasks and may take part in different aspects of the conspiracy. Some paths pursued by some conspirators may be more fruitful than others. But all of their efforts are directed toward achieving their ultimate, shared criminal objective

House Committee vice-chair Rep. Liz Cheney (R-Wyo), in her opening statement on June 9, said the hearings would show that “Donald Trump oversaw and coordinated a sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power.” The different parts of that scheme will be the subject of different hearings. They are best viewed not in isolation but as part of a single overall plan, as Rep. Cheney said. And most of them did not depend on an assault on the Capitol. There are many ways to obstruct an official proceeding that do not involve a physical attack on the proceeding’s location.

As Rep. Cheney discussed, the different parts of this plan included:

— Spreading the big lie, by falsely claiming Trump had won the election and that there was widespread voter fraud.

— Corrupting the Department of Justice, by removing senior officials and replacing them with loyalists who would put the power of the Department behind Trump’s false claims of election fraud.

— Pressuring vice president Pence to refuse to count the lawful elector ballots and either send the issue back to state legislatures or simply reject those ballots and declare Trump the winner.

— Pressuring state officials to support false claims of election fraud and change their election results to declare Trump the winner, in states that Biden actually won.

— Sending slates of phony electors for president Trump to Washington, to falsely proclaim that they were the duly constituted electors from their states.

Notably, almost all of these efforts took place prior to January 6 and involved potential co-conspirators who were not on the ground on January 6 and did not take part in the assault on the Capitol.

The Nature of a Conspiracy Charge

Several features of a conspiracy charge make it particularly well-suited for these events. The first is simply that there are multiple individuals involved, pursuing a single criminal goal through multiple different avenues. Conspiracy charges are made to capture such efforts.

In a conspiracy charge, all co-conspirators do not need to be involved in all aspects of the conspiracy. Co-conspirators, as partners in crime, are criminally responsible for each other’s actions. If some were involved in pressuring state officials while others worked on the fake electors scheme or on corrupting the Department of Justice, all conspirators would be responsible as participants in a common enterprise pursued along multiple tracks.

Another key feature of a conspiracy charge is that the conspiracy need not succeed; the wrongful agreement itself is the crime. Hundreds of those involved in storming the Capitol have been charged with crimes that were actually completed – destruction of property, assault on a law enforcement officer, or unlawful entry into restricted areas. But in a conspiracy to prevent the certification of the election through non-violent means, it would make no difference that the certification ultimately was successful.

The proceeding on January 6 was in fact obstructed by the assault; it was delayed for hours as Congress was forced to evacuate the Capitol. But there could be conspiracy charges based on events prior to January 6 that do not include the assault on the Capitol as part of the conspiracy. In such a case, it would not matter that the conspiracy to obstruct the proceeding through other means, such as the phony electors scheme, did not ultimately succeed.

Trump fundraising email
Trump Fundraising E-mail

And Then There’s the Wire Fraud           

Compelling evidence emerged at the June 13 hearing about an entirely different area of potential criminal charges: what Committee member Zoe Lofgren (D-CA) called the “big rip-off”. Trump and his allies allegedly used the phony claims of election fraud to raise more than $250 million from donors for an “election defense fund” that apparently didn’t exist. Instead, money was diverted to Trump’s Political Action Committee and spent on other political projects and donations, including more than $200,000 that went to the Trump Hotel group.

This is an allegation of textbook wire fraud, 18 U.S.C. § 1343. There is a scheme to defraud: fundraising pitches making false claims of election fraud and promising to use donated funds to fight that supposed fraud, and then diversion of the money to other uses by the defendants. And there is the use of wireless transmissions in furtherance of the fraud: the fundraising emails and any electronic payments that were sent in. If I were writing a wire fraud hypothetical for a final exam, I couldn’t do any better.

Trump and his campaign might try to defend by claiming there was “fine print” at the bottom of the fundraising pitches that indicated the money could be used for other purposes. But if the overall design of those pitches is intended to deceive, slipping some fine print in at the bottom won’t prevent it from being considered a fraud. And the pitches also included knowingly false claims about the election being stolen as the reason for raising money, another indicator of fraud.

These additional potential criminal charges, teased by the Committee at the conclusion of the hearing, have no connection to the actual riot at the Capitol. The email solicitations could form the basis for a wire fraud case even if the assault on the Capitol had never taken place.

Bottom Line: It’s About More Than the Assault   

I think it’s useful to place all of the events being covered by these Committee hearings into two distinct categories. There’s the physical assault on the Capitol building on January 6, and there’s all of the non-violent efforts to overturn the election results — most of which took place prior to January 6. Criminal charges could be based on either.

Any potential defendant could be part of one, without being part of the other. The Proud Boys, Oath Keepers, or other rioters who attacked the Capitol (and who are now being prosecuted for that attack) likely had nothing to do with any of the other non-violent efforts to overturn the election. And someone who participated in the phony electors scheme or pressuring state election officials, for example, may have had nothing to do with the riot and may not have anticipated it at all.

We will have to see how any potential criminal charges ultimately shape up. But I could easily see a case alleging a conspiracy to overturn the election results though the various non-violent means that did not include the actual assault on the Capitol as part of that conspiracy. Charges based on the actual assault could proceed on a separate track, as hundreds of such cases already are. And with some defendants — including potentially Trump himself — there may be overlap between the two.

Viewed in this light, the assault on the Capitol is best seen as a tragic side effect of the much larger conspiracy to overturn the election. The attack ended up serving as a useful tool, because it bought the conspirators more time on that day to try to use other means to prevent the certification of Biden’s victory. But it was not essential to the conspiracy, need not have been one of its goals, and need not have been foreseen or planned by the co-conspirators. If the conspirators could have overturned the election peacefully through their various non-violent schemes, they would have done so – and it would still be a crime.

It makes sense for the January 6 Committee to spend much of its time showcasing for the American people the events that took place prior to January 6. The gravest danger to the country actually came not from the riot itself but from the schemes of those who sought to overturn the election through nonviolent means.

Security around the Capitol can be improved. Broken doors and windows can be repaired. Physical injuries can heal. Democracy itself may turn out to be more fragile.

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Trump’s Inaction During the Capitol Riot as a Possible Crime

Representative Liz Cheney (R-Wyo), the vice-chair of the House Select Committee investigating the January 6, 2021 Capitol riot, recently raised some eyebrows with this question: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?” The language of Cheney’s question tracks that of the obstruction of justice statute prosecutors have used to charge more than 200 Capitol rioters. Her suggestion that Trump’s failure to act might make him guilty of obstruction was particularly intriguing.

In a subsequent interview with the Washington Post, Committee Chair Bennie Thompson (D-Miss) expanded on the idea of Trump’s criminal liability based on his inaction. Thompson said the committee was exploring why, once the assault on the Capitol began, it took Trump more than three hours to ask his supporters to stand down. He said Trump’s “dereliction of duty” in failing to try to stop the riot could be a factor in whether the committee refers possible criminal charges against Trump to the Department of Justice.

These comments have led to some debate over whether Trump’s inaction during the riot, standing alone, could be a crime. I think the answer is: maybe. But it would be a novel and controversial criminal theory. The Department of Justice is unlikely to rely upon such a theory for something as consequential as the prosecution of a former president.

In any event, the theory is unnecessary. As I’ll discuss at the end of this post, there are plenty of potential crimes to investigate based on Trump’s actions, rather than his inaction. Trump’s failure to try to stop the riot best serves not as a stand-alone crime but as evidence of his intent for other potential charges.

Trump addressing the "Save America'" rally
Trump addressing the “Save America” rally before the riot

Trump’s Inaction on January 6

The theory that Trump’s inaction might be criminal focuses on his behavior once the assault on the Capitol began. Trump spoke that day for more than an hour to the unruly crowd at a rally outside the White House. He repeated his lies about the election being stolen, urging the crowd to march to the Capitol and “fight like hell” to save the country. He then retreated inside the White House and watched developments on television, while the crowd followed his command and headed to the Capitol.

The mob first breached police barriers outside the Capitol around 1:00 pm, and first broke into the building around 2:00 pm. For more than three hours, Trump – who was, let’s remember, still the president of the United States — did nothing to respond as his supporters assaulted police officers, broke windows and doors, desecrated the halls of Congress, and called out violent threats to Mike Pence, Nancy Pelosi, and others. Members of Congress who were under attack called Trump and his staff, pleading with him to call off the mob. Fox News hosts texted Trump’s chief of staff Mark Meadows, urging Trump to ask the rioters to leave the Capitol. Trump’s children also reportedly tried to persuade their father to try to call off the attack.

In response to these appeals, the president did nothing. According to witnesses, Trump appeared delighted when he saw the attack unfolding on television, believing that the mob was fighting for him. As the riot continued, Trump placed phone calls to Senators, still trying to persuade them to reject the certified election results.

Finally, his staff convinced Trump to release a video asking the rioters to leave the Capitol. They had to do several takes because he repeatedly veered off script and failed to ask the rioters to stop the attack. The statement the White House finally released did ask the rioters to leave. But Trump also said he understood their anger because, “We had an election that was stolen from us.” He concluded with, “We love you, you’re very special.”

Criminal Liability Based on Inaction

Could Trump’s failure to act for more than three hours be a crime? As a rule, criminal liability is based on action, not inaction. If I see a robbery taking place and do nothing to stop it, that does not make me criminally responsible for the robbery, even if I could have easily and safely prevented it. If I see an unconscious man lying on the railroad tracks and walk away as I hear a train whistle in the distance, I am not criminally liable for homicide. My behavior may be morally reprehensible, but my inaction does not make me guilty of a crime.  

But there is an exception to this rule if a person was under a legal duty to act. In rare cases, criminal liability can result from a failure to act in knowing violation of such a duty. It must be a clear legal duty, not just a moral or ethical one.

The duty to act can come from different sources. It can be based on a trusted or personal relationship, such as the duty of a parent to care for a child or the duty of a ship’s captain to protect the crew. Sometimes the duty can arise from a specific statute, such as laws making it a crime to fail to file your taxes. It may be based on contract; a lifeguard who willfully allows a swimmer to drown may be criminally liable for that failure to act. And if you create the situation that puts another person in danger, you may then have a legal duty to help that person avoid injury.

Trump sat by and gleefully watched the riot unfold but did nothing to intervene. That was an unconscionable violation of his responsibility as president. But to argue that his failure to act might actually be criminal, we would have to identify a legal duty on which to base his liability.

The U.S. Constitution

The Duty from the Take Care Clause

Some commentators have suggested that Trump had a duty to try to stop the riot based on the “Take Care” clause of the U.S. Constitution. Article II, Sec. 3 of the Constitution provides that the president “shall take Care that the Laws be faithfully executed.” If this obligation means anything, these commentators argue, it should include a duty to act when the Capitol is being attacked and democracy itself is under assault. The argument would be that Trump had a legal duty to act to protect the institutions of democracy and the “faithful execution” of the Electoral Count Act, the law governing Congress’s certification of the winner of the election.

Legal duties can arise not only from statutes but also from common law or other legal obligations. And there is some precedent for using Constitutional obligations to create a legal duty to act. For example, prison guards who stood by and did nothing to intervene while other guards assaulted a prisoner have been found guilty for their failure to act based, at least in part, on the Eighth Amendment’s prohibition of cruel and unusual punishment.

But not surprisingly, there is no precedent for using the Take Care clause to create a presidential legal duty that would support criminal liability. I think taking that step would be problematic. The constitutional obligation to faithfully execute the laws applies to essentially everything a president does; it’s basically the president’s job description. That generic command does not seem sufficiently targeted to give rise to a specific duty to act that would support criminal liability.

It’s easy to see how such a doctrine could be turned into a political weapon. For example, a president has a duty to see that laws related to disaster relief are faithfully executed. Suppose a hurricane strikes a state led by a governor who has been critical of the president. The president fails to authorize federal disaster aid in a timely way, and people die. That’s certainly a violation of the president’s duties, but could a future administration actually prosecute the president for homicide based on his failure to act? It’s true prosecutors would still have to prove criminal intent. But it would be far too easy for political opponents to turn virtually any presidential inaction into an alleged violation of the Take Care clause justifying prosecution. There’s no clear limiting principle.

Another difficult issue, at least in this case, would be causation. If the water conditions mean a lifeguard probably could not have saved a foundering swimmer, the lifeguard will not be responsible for failing to try. Similarly, prosecutors presumably would have to prove that Trump’s intervention would have been effective, so that his failure to act caused at least some of the harm. It’s not clear this is true.

For example, in the recent indictment of the Oath Keepers for seditious conspiracy, their leader Stewart Rhodes is quoted as messaging his followers, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.” A riot has a life of its own, and by the time the mob breached the Capitol barriers things may have been beyond even Trump’s control.

It’s true that a number of people on that day apparently believed Trump had the power to call off the attack. But it’s not clear the mob would have listened. This is a far cry from stopping one assault or pulling one overboard sailor from the sea. He absolutely should have tried, of course. But in a criminal case prosecutors would have to prove beyond a reasonable doubt that Trump’s earlier intervention would have made a difference. I’m not sure they could do that.

In sum, although the argument for omission liability based on the Take Care clause has some intuitive appeal, I don’t love it as a matter of criminal law. And I think DOJ would be extremely unlikely to employ such a novel theory.

Creation of the Danger   

A better argument for Trump’s liability for failure to act might be based on the rule that one who creates a situation that puts another in danger may then have a duty to help that person avoid harm. The classic example is a defendant who deliberately sets a building on fire and then fails to help people trying to escape the flames. Here the argument would be that Trump was responsible for causing the riot, and having caused it, he had a legal duty to try to stop it.

This may be a better theory for omission liability. But it does require the prosecution to prove, in the first instance, that Trump intended to cause the riot. And if the government can prove that, then it can potentially charge Trump for a number of direct criminal acts, including for aiding and abetting obstruction of justice and seditious conspiracy. At that point, there is little need for the omission theory.

Some have suggested Trump would have a legal duty to intervene even if he did not intend for the riot to happen. But basing criminal liability (as opposed to moral liability) on a failure to act in response to a dangerous condition the defendant did not intend to create would be extremely aggressive. The first criminal prosecution of a former U.S. president is not the place where DOJ is likely to roll out such a theory.

Former president Donald Trump

The Best Use of Evidence of Trump’s Inaction

A former president clearly is subject to criminal prosecution for affirmative criminal acts while in office. But for dereliction of duty and egregious presidential failures to act, the usual remedy is impeachment and removal from office, or defeat in the next election. Trump was, of course, impeached for his role in the Capitol riot, although he was not convicted.

The evidence of Trump’s failure to act is indeed damning. But it will be most useful not as the basis for a criminal charge based on that omission, but as evidence of his intent that supports his prosecution for affirmative criminal acts.

In any prosecution of Trump for the Capitol riot, proving his intent would be the key. Did he really intend for his followers to storm the Capitol building following his incendiary speech? Did he intend to obstruct the Congressional proceeding that would certify Joe Biden as the winner of the election, whether via the assault, corrupt persuasion of Mike Pence, or by other means? If the government can’t prove corrupt intent on Trump’s part, there is no criminal case.

To prove intent, circumstantial evidence is often the key. Intent can be inferred based on a defendant’s actions. Here, as his followers stormed the Capitol, Trump watched it happen on television and appeared to be delighted. He resisted appeals from multiple sources to try to stop it. Even when he finally filmed his video message, he offered words of encouragement to the rioters and told them he loved them.

These are not the actions of a man who was misunderstood by his followers and is horrified by what they did. If the assault on the Capitol was not what Trump intended, any rational person would expect him to act immediately to try to stop it. That he failed to do so is evidence that he supported what was happening.

Federal District Court Judge Amit Mehta made a similar point recently during oral arguments on a motion to dismiss a civil lawsuit for damages filed against Trump by members of Congress and former Capitol police officers. “What do I do about the fact the president didn’t denounce the conduct immediately?” he wondered. “If my words had been misconstrued … and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop? . . . Isn’t that . . . enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?” 

This inference would apply equally in a criminal case. The facts surrounding the riot would not be in dispute; the entire case would come down to Trump’s intent and whether he is responsible. And in such a case, as Judge Mehta observed, a jury could reasonably conclude that if the riot was not what Trump wanted, he would have moved aggressively to try to stop it.

Stewart Rhodes, found of the Oath Keepers
Stewart Rhodes, Founder of the Oath Keepers

The Affirmative Crimes at Issue

So what are the most likely crimes by Trump that DOJ could be investigating based on his actions, rather than his inaction?

Obstruction of Justice, 18 U.S.C. § 1512 – This is the crime of corruptly attempting to obstruct the Congressional proceeding to certify the election. I wrote about that offense here. A number of federal district court judges have now upheld the charge and ruled that it does apply to the Capitol rioters. The maximum penalty is twenty years in prison.

Although not present during the riot itself, Trump could be found guilty of obstruction if the government established that he aided and abetted the assault on the Capitol by inciting or encouraging the rioters or by taking actions that helped them, such as withholding the deployment of additional law enforcement officers. Conspiracy to violate section 1512 carries the same 20-year penalty.

Seditious Conspiracy, 18 U.S.C. § 2384 — This statute makes it a crime for two or more persons to conspire to oppose the U.S. government by force, or “by force to prevent, hinder, or delay the execution of any law of the United States.” It provides a penalty of up to twenty years in prison.

On January 12, 2022 the Department of Justice indicted eleven members of the extremist group the Oath Keepers, including their founder Stewart Rhodes, for seditious conspiracy, obstruction, and other charges. This was the first time DOJ had used that charge in a January 6 prosecution.

Rebellion or Insurrection, 18 U.S.C. § 2383 — Provides a ten-year penalty for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It also provides for disqualification from holding public office in the future. Trump might be vulnerable here if any of his actions could be considered giving aid and comfort to the rioters.

Conspiracy to Commit an Offense, 18 U.S.C. § 371 This would apply if the government established that Trump entered into an agreement with others to violate any of the above statutes with the intent to further that criminal objective.

One benefit of a conspiracy charge is that the crime is the agreement itself. It does not require a co-conspirator to commit any other crime. So, for example, Trump could be liable for conspiring to obstruct the Congressional proceeding to certify the election even though he never set foot in the Capitol himself.

Conspiracy to Defraud the U.S., 18 U.S.C. § 371 — A different conspiracy theory prohibits conspiracies to defraud the United States, even in the absence of an agreement to commit a particular crime. This portion of the statute is violated if a defendant conspires to “impair, obstruct, or defeat” a lawful government function. This theory was used by special counsel Robert Mueller to indict the Russians who engaged in a social media campaign to influence the 2016 presidential election: Mueller indicted them for conspiring to impair the lawful functions of the Federal Election Commission, Department of State, and Department of Justice. Here, prosecutors could charge a conspiracy to obstruct or impede the lawful Congressional function of certifying the election results.

Conclusion: An Unlikely and Unnecessary Theory

Trump’s inaction during the riot is appalling. But dereliction of duty, standing alone, is not usually a crime. And prosecutors trying to turn that inaction into a crime would face a number of significant legal hurdles.

The best use of the evidence of Trump’s inaction is to prove his intent to commit affirmative criminal acts. There are plenty of potential crimes to choose from. That doesn’t mean a criminal case can be made, of course. But a case based on Trump’s actions stands a far better chance than a case based on his failure to act.

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