An Update on the January 6 Investigations

It’s been an eventful couple of months in the investigations of January 6, 2021. There are signs that DOJ’s criminal investigation is starting to close in on higher-level organizers and leaders of the attempt to overturn the election, including those in Trump’s inner circle. The aggressive Congressional investigation continues, with House attorneys alleging in federal court that they believe former president Trump himself committed crimes on January 6. And a federal judge recently ruled that civil suits seeking damages from Trump and others stemming from the Capitol riot may proceed. Overall, things definitely seem to be accelerating, and it’s a good time for an update on the January 6 investigations.

Attorney General Merrick Garland

The Department of Justice Investigations

Garland Vows to Pursue Those Responsible “At Any Level”

On January 5, 2022, Attorney General Merrick Garland gave a speech commemorating the one year anniversary of the assault on the Capitol. He said investigating those events was DOJ’s highest priority, and vowed to pursue those responsible “at any level.” He shared some remarkable statistics about the scope of the investigation, the largest in DOJ’s history.

Garland also appeared to respond to critics complaining that DOJ was charging mostly misdemeanors and did not seem to be pursuing the higher-level organizers or more serious charges. He said that, by disposing of the less serious cases first, prosecutors were following “well-worn prosecutorial practices.” He noted that in large, complex investigations, prosecutors begin with the easier, more overt cases and then work their way up the ladder to higher-level players and more serious charges as they gather more information.

Garland vowed that “the actions we have taken so far will not be our last.” And he said that although he understood the possible frustration with the lack of public information and the time it takes to investigate such cases properly, that was how DOJ must proceed: “We will and we must speak through our work.”

Stewart Rhodes, Founder of the Oath Keepers

The Oath Keepers Indictment

One week after Garland’s speech, a new indictment demonstrated that the criminal investigation was indeed moving up the ladder to more serious charges and actors. On January 13, DOJ announced the indictment of eleven members of the right-wing militia group the Oath Keepers, including its founder, Stewart Rhodes. The lead charge in that indictment is Seditious Conspiracy, 18 U.S.C. 2384, which makes it a crime to conspire to use force to overthrow the U.S. government or interfere with the execution of federal law. This was the first time any Capitol riot defendants had been charged with sedition, which essentially accuses the defendants of taking up arms against the United States to prevent the peaceful transfer of presidential power.

The Oath Keepers indictment goes into great detail about the group’s activities leading up to January 6. Using encrypted messaging apps and online forums, they formulated their plans to travel to Washington and use force to stop Congress from certifying that Joe Biden won the election. The indictment also describes how members of the group helped lead the assault on the Capitol, using military gear and tactics. Others stockpiled weapons in the D.C. suburbs and served as a “Quick Reaction Force” ready to deploy those weapons to support the attack. They even planned how they might use boats to get weapons across the Potomac if the government closed the bridges. The Oath Keepers were not mere attendees at the White House rally who later got swept up with the mob. They were organizers and leaders of the assault on the Capitol.

Joshua James, Leader of the Alabama Oath Keepers

The First Guilty Plea to Sedition

The Oath Keepers indictment represented the first time DOJ filed charges of sedition against any of the rioters. On March 2, it secured the first guilty plea to that charge. Joshua James, one of the eleven Oath Keepers named in the Rhodes indictment, pleaded guilty to seditious conspiracy and obstruction of Congress. James also agreed to cooperate with prosecutors in the ongoing investigation.

James’s plea and cooperation could be a major breakthrough. He can provide information not only about the Oath Keepers conspiracy but potentially about the involvement of other, higher-level participants in the events of January 6. In particular, James and other Oath Keepers are known to have provided personal security on January 5th and 6th for Trump advisor and confidant Roger Stone.

Stone, of course, is a well-known figure from the Trump years. The Mueller investigation revealed that Stone acted as a conduit between the 2016 Trump campaign and Wikileaks and Julian Assange for information about the release of stolen Democratic emails in the weeks leading up to the 2016 election. Stone was convicted of lying to Congress about his role in those events and was sentenced to nearly four years in prison, but was later pardoned by president Trump.

Stone was part of the group of close advisors to president Trump who gathered in Washington in the days leading up to January 6. A recent detailed report in the Washington Post described an upcoming documentary that will highlight Stone’s work with the Trump team to overturn the results of the election.

With the James guilty plea, prosecutors have now secured the cooperation of someone who was close to Stone during those pivotal days. That potentially allows investigators to move beyond the actual rioters and into a broader conspiracy involving those close to Trump who planned and organized from a distance. And as investigators move up that ladder, those senior Trump advisors are only one rung below Trump himself.

The Proud Boys Indictment

On March 8, DOJ announced the indictment of Enrique Tarrio, the former leader of another militia group, the Proud Boys. He and five other members of the Proud Boys are charged with conspiracy, obstruction of Congress, assaulting law enforcement officers, and destruction of federal property. The Proud Boys are another of the leading militia groups involved in organizing and carrying out the assault on the Capitol.

The Proud Boys featured prominently in an incident from the 2020 presidential debates. When the moderator asked president Trump whether he was willing to denounce right-wing extremist groups, he asked who he should denounce. Joe Biden suggested the Proud Boys. Trump responded, “Proud Boys, stand back and stand by.” Tarrio then Tweeted in response, “Standing by, sir.”

As with the Oath Keepers case, the Proud Boys indictment details how the members of the group planned and then participated in the assault on the Capitol. It describes how they breached the outside barriers and assaulted police officers. One of the defendants allegedly used a riot shield taken from a police officer to break a window in the Capitol that rioters then used to make their first entry into the building. After entering the building, one posted on social media, “We’ve taken the Capitol.”

Tarrio is not charged with entering the Capitol himself but with helping to coordinate the Proud Boys activities. On January 4, Tarrio had been arrested in D.C. on local charges stemming from his participation in an assault on Black Lives Matter protestors in December. As part of his conditions of release, he was ordered to stay out of D.C. Before leaving, however, the indictment alleges that on January 5 he met in a parking garage with Stewart Rhodes of the Oath Keepers and others – more evidence of a potentially broader conspiracy. He then traveled to Baltimore, where he stayed in communication with the Proud Boys who actually participated in the assault.

The Proud Boys indictment does not include the Seditious Conspiracy charge used in the Oath Keepers indictment. It’s not clear to me why that’s the case. One difference is that the Proud Boys indictment lacks any reference to gathering and bringing firearms to DC, which is a big part of the Oath Keepers case. Firearms would not be necessary for a sedition charge, but perhaps that is a discretionary distinction DOJ is drawing about when to use that charge.

Guy Reffitt

The First Conviction at Trial

Also on March 8, the first Capitol rioter to go to trial was convicted on all counts. Guy Reffitt, a member of a Texas militia group called the Three Percenters, was charged with five felonies, including obstruction of Congress and carrying a firearm during a civil disorder. He traveled to D.C. with an assault rifle and handgun. He carried the handgun with him during the assault on the Capitol, along with zip ties, a helmet, and body armor. Prosecutors alleged that he led one wave of the assault on the Capitol and served as the “tip of the spear,” helping break through police barricades before being repelled by pepper spray.

Reffitt was also convicted of obstruction of justice for threatening potential witnesses: his own children. After returning to Texas, he became paranoid about being arrested. He told his 18-year-old son and his younger sister, “If you turn me in, you’re a traitor. And traitors get shot.” His son, who does not share his father’s political views, did in fact turn him in and testified at his trial. (And you thought your Thanksgiving dinners were awkward.)

This first conviction was an important milestone for the government. Prosecutors put on an overwhelming case. It only took about a week to pick a jury and try the case, and the jury only deliberated for about three hours. This sends a strong signal to other January 6 defendants about the government’s ability to try these cases quickly and effectively. The Reffitt conviction will likely convince other defendants to plead guilty and cooperate rather than challenge the prosecution at trial.

Judge Nichols Ruling on Obstruction

Along with all these positive developments, there was one recent setback for prosecutors. On March 7, U.S. District Judge Carl Nichols ruled that prosecutors could not charge a Capitol rioter with obstruction of a Congressional proceeding under 18 U.S.C. 1512(c)(2). The ruling came in the case of Garrett Miller of Texas. Nichols ruled that this portion of the statute applies only to obstructive conduct that is similar to document shredding or other destruction of physical evidence. Because Miller was not charged with that kind of conduct, Nichols dismissed the obstruction charge. Miller remains charged with multiple other crimes.

I think Judge Nichols is wrong. I wrote here last fall about why I believe the obstruction of Congress charge does apply to the conduct of the Capitol rioters. Ten other district court judges, faced with similar motions, have ruled that the statute does apply – you can find a list here. Nichols is really out there on his own.

Nevertheless, the decision does cast a shadow over the more than 200 cases where the obstruction charge has been filed. The Proud Boys and Oath Keepers indictments discussed above include that charge. Reffitt was just convicted of it, and James pleaded guilty to it. Some defendants may now be reluctant to plead to the charge if there are doubts about its legal validity.

I see this as a speed bump for DOJ, not a major roadblock. This legal issue was always destined to be decided by the D.C. Circuit, and potentially even by the Supreme Court. DOJ will probably pursue an immediate appeal of Nichols’ order, hoping to get a relatively quick decision from the Circuit court. But in the meantime, given the overwhelming approval of the charge by every other judge to look at the issue, I expect DOJ will continue to pursue it in appropriate cases.

Members of the House Select Committee

The Congressional Investigation

The investigation of January 6 by the House Select Committee is churning along. They have hired a number of former federal prosecutors and appear to be conducting a thorough and painstaking investigation. The Committee has spoken to nearly 600 witnesses and has gathered a huge amount of evidence. They have announced plans to hold public hearings in the near future. They are continuing their efforts to gather information from very high-level people close to Trump, including his family members and senior staff.

In contrast to the DOJ criminal investigation, the House Committee is free to make its findings public. It already has released some information, such as the text messages to Trump during the riot from his family, Fox News hosts, and members of Congress, all pleading with Trump to call it off, and the draft of a proposed executive order (never signed) directing the department of defense to seize voting machines in key states. The Committee reports and hearings ultimately will provide the most detailed public findings to date about January 6 and what caused it.

Allegations Regarding John Eastman

The Committee made headlines recently based on allegations it made in litigation with former Trump attorney John Eastman. Eastman was the architect of the universally-discredited theory that on January 6 vice president Mike Pence could simply reject the electoral votes of certain states that Joe Biden won and declare Trump the winner. He was one of the Trump advisors who occupied the “war room” at the Willard Hotel in early January. The House Committee subpoenaed Eastman’s emails and he has withheld thousands of them, claiming they are protected by attorney-client privilege because he was acting as Trump’s lawyer.

In a federal court filing last week in California (where Eastman lives), attorneys for the Committee argued the emails are not protected. One of their arguments rests on the rule that communications with an attorney are not privileged if made in furtherance of a crime or fraud. They allege that Trump was communicating with Eastman in order to help Trump commit at least two federal felonies: conspiracy to defraud the United States and obstruction of a Congressional proceeding.

The judge held a hearing on the attorney-client privilege issues on March 8, and on March 9 ruled that he will review the documents to determine whether any privilege applies. The judge may order that the emails be turned over for other reasons, including that there was not a true attorney-client relationship between Trump and Eastman. But even if the judge does not rule that the crime-fraud exception applies, the implications for the criminal case are clear. Government attorneys have, for the first time, told a federal judge they believe Trump himself may have committed crimes in connection with January 6.

LIkely Criminal Referral of Trump

It now seems almost certain that the House Committee will make a criminal referral of Trump to the Department of Justice. In terms of possible crimes by Trump, attention seems to be coalescing around the two charges contained in the Eastman pleadings: conspiracy to defraud the U.S. and obstruction of Congress. In a recent “prosecution memo” published on Just Security, law professor and former U.S. Attorney Barbara McQuade argued for the application of those same charges to Trump’s efforts to overturn the election.

Conspiracy to defraud the United States prohibits interfering with lawful functions of the federal government by deceit, trickery, or other dishonest methods. It was the charge used by special counsel Robert Mueller to indict the Russians accused of interfering with the 2016 presidential election through phony social media campaigns and other methods. Obstruction of Congress is the charge discussed above, that was recently called into question by Judge Nichols.

A Congressional referral to DOJ does not mean DOJ must prosecute; Garland will still have to make that decision. And despite the Committee’s bipartisan makeup, any referral will be dismissed by many as merely political. But any formal announcement that a Congressional committee believes the former president committed crimes would still be a significant development.

The Civil Lawsuits        

A final important recent development related to January 6 involves civil suits filed by Members of Congress and Capitol Police officers against Trump and others. The plaintiffs sued Trump, the Proud Boys, the Oath Keepers, Rudy Giuliani, Donald Trump Jr., and others, seeking damages for their physical and emotional injuries stemming from the assault. The defendants moved to dismiss the lawsuits on a number of grounds. On February 18, U.S. District Judge Amit Mehta ruled the lawsuits can go forward against Trump and the militia groups, although he dismissed the cases against Giuliani and Donald Jr.

These are civil suits for damages, so they will not result in any criminal charges. But Mehta’s opinion is worth a read for the detail it provides about Trump’s encouragement and incitement of the Proud Boys, Oath Keepers, and others who engaged in the riot. Notably, he concluded that the plaintiffs, at this stage, have alleged evidence sufficient to demonstrate a civil conspiracy between Trump and the rioters to obstruct the Congressional proceeding. Mehta cited all the steps that Trump took to encourage the rioters to attend on January 6 and try to stop Congress from acting. He noted that Trump’s repeated use of the word “we” during his speech to the mob on January 6 suggested they were engaged in an enterprise together.

Mehta also observed, when discussing the Oath Keepers, that evidence of their connection to Roger Stone may end up being significant in terms of proving a larger conspiracy. As discussed above, this could be true for the criminal investigation as well.

The civil lawsuits will now proceed to the discovery phase. That could unearth yet more information about January 6 and could include efforts to take depositions from Trump himself. Proving a civil conspiracy by a preponderance of the evidence is a far cry from proving a criminal one beyond a reasonable doubt. But the facts all overlap, and the different lawsuits and investigations have the potential to help unearth more of those facts.

Garland Reaffirms DOJ’s Commitment

Attorney General Garland gave an interview just yesterday on NPR, where he reaffirmed his commitment to follow the facts and law wherever they lead and said he would not shy away from cases that may be politically controversial. He vowed the investigation will continue “until we hold everyone accountable who committed criminal acts with respect to January 6.” I take him at his word, and I think the signs we are seeing are consistent with his vow.

Things are definitely heating up. Between the DOJ criminal investigations, the House Committee investigation, and the civil lawsuits, it looks like 2022 will be an eventful year when it comes to holding accountable those responsible for the attempt to overthrow the election.

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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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