ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.
What Can Donald Trump Be Charged With in Connection With the Jan 6th Insurrection
Many crimes were committed at the Capitol on January 6, 2021, another day that will live in infamy from a cowardly attack on America soil. Instead of it being foreign adversary, it was domestic terrorists who did the deed.
First, let's define some terms.
I just used one that needs clarification - Terrorist. You are a terrorist if you "a person who uses unlawful violence and intimidation, especially against civilians, in the pursuit of political aims."
Some people think those that attacked the Capitol are Traitors. To be guilty of Treason, the Court has settled on these criteria - "you must have the specific intent to betray the U.S. on behalf of an enemy and then commit an overt act of such betrayal." .
Then there is Rioting. Under 18 U.S. Code Section 2102, rioting is:
- 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 or
- a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.
- Inciting to Riot is includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
What about Insurrection or Rebellion? Here 18 U.S. Code Section 2383 says you are guilty of Insurrection if "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States." Simple and Sweet.
Seditious Conspiracy is also a possibility. 18 U.S. Code Section 2384 defines Seditious Conspiracy as "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."
Those are the possible crimes Donald Trump may have committed. Now let's consider them one-by-one.
Does Trump qualify for being called a terrorist. Here is the definition again: "a person who uses unlawful violence and intimidation, especially against civilians, in the pursuit of political aims." I would argue that if it is found that Trump did incite the Jan 6th violence, then clearly he can be classified as a terrorist. Even if he didn't "technically" incite what happened on Jan 6th and other, earlier, right-wing attacks on State capitols and governors, he clearly encouraged people he know were already primed to such violence to act.
Consequently, I think the term is appropriate.
This is an easy one. Trump's actions in the months leading up to and including what happened on January 6th does not fit any of the elements to charge him with treason. There simply was not a foreign power involved.
That said, I still think Trump came very close to committing treason on the stage in Helsinki. There is no question in my mind that siding with the Russians over our own intelligence was an "overt act" they betrayed the interests of the United States. But, did he have the "intent" to do that? I don't know, so I classify him as an accidental traitor.
Inciting to Riot
Can Trump be charged with Rioting? I think not, he wasn't even there. BUT, can he be charged with Inciting to Riot? It would seem to me there is much higher chance he could be found guilty of this. Keep in mind, it isn't just what he said on Jan 6th, one has to look at his entire writings and speeches in the months leading up to the "insurrection".
He knew who he was dealing with, the Proud Boys and the Oath Keepers. He even told the Proud Boys to "stand by" in a presidential debate. He also knew the anger that he was inculcating into his followers through his lies about the election. He knew he had created a tinderbox. It is up to prosecutors to piece together a time line of inflammatory rhetoric from June 2020 to January 6, 2021. Even in his Jan 6th speech there were many contradictions. While did indeed say the word "peacefully" once in his speech, he also shouted out the words "fight" 20 times and the theme that the election was stolen 32 times. In addition, here are more "action" phrases he or others used that day:
Trump, as he sent his mob off to the Capitol: "If you don’t fight like hell, you’re not going to have a country anymore.” these were yelled, not softly spoken
Giuliani - "Let’s have trial by combat."
Trump, in calling his mob to Washington - "Be there, will be wild!"
Trump, to an already fired up crowd - “You have to show strength, and you have to be strong.”
Rep Mo Brooks, as the crowd was ready to march - "Today is the day American patriots start taking down names and kicking ass,"
How can anyone believe that a riot wasn't going to happen with suggestions like that?
I think Trump is particularly vulnerable to this crime. Let's review.
""Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both;"
If the "incitement" element can be proven, then I think the rest of the elements fall into place. Even if there is no "incitement", can it be shown that Trump assisted? Could that "assistance" be something as simple as not calling off the dogs when he learned of the insurrection? I would vote yes.
Consequently, it would seem to me that Trump is wide open to the DOJ bring this charge.
This one, while being a seemingly obvious crime, may be much more problematic. Why? Look at the elements:
"If two or more persons in any State ... conspire to ... or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."
What may make this problematic is the "two or more persons" requirement. While this crime clearly applies to the Proud Boys and the Oath Keepers, who does one get to the conspiracy part of this? Can the Trump-Giuliani-Brooks-Trump Jr. cabal qualify? Can prosecutors somehow conflate Trump with the mob that he incited to come up with the conspiracy? I don't know, I think it would be very hard.
So Which One Do You Chose or None of the Above?
The above gives a quick overview of the possible criminal charges Donald Trump may face for his actions leading up to the January 6, 2021 insurrection. You can do your own research and come to your own conclusions as to Trump's culpability.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2021 Scott Belford
Scott Belford (author) from Keystone Heights, FL on June 30, 2021:
You are absolutely on point, Doris.
Doris James MizBejabbers from Beautiful South on June 30, 2021:
What I disagree with in the Constitutional law is the fact that "an enemy" is not defined. It is taken for granted that "an enemy" must be a foreign power. When will citizens who attempt to overthrow the government and set up their own government be looked upon as committing treason against our government? Or will they always just be "insurrectionists"?
After the Civil War, there were Unionists who wanted to see all Confederates convicted of treason. But then, Confederates didn't try to overthrow the U.S. government. They just seceded from it and set up their own separate nation. Perhaps we are fortunate that it is interpreted in that manner.