For most of us, it’s an article of faith that Donald Trump is responsible for the Jan. 6 insurrection, regardless of Republican sentators’ refusal to vote for a conviction in his second impeachment. But a prominent legal scholar believes there’s another way to hold Trump to account for that day’s horror. He believes that Trump can be prosecuted not for what he did that day, but for what he didn’t do.
In a column for Just Security, Albert Alschuler, a law professor at the University of Chicago and Northwestern University, writes that there’s a far easier path to bring Trump to justice. He argues—convincingly, in my mind—that Trump’s inaction once the thugs acting in his name flooded into the Capitol is itself a crime.
Alschuler’s argument comes in two parts. First, he argues that Trump’s failure to do anything to stop the riot was a violation of the Constitution.
The Constitution gave Trump a clear legal duty to intervene. Article II, Section 3 provides, “[The President] shall take Care that the Laws be faithfully executed.” This provision permits good-faith exercises of law-enforcement discretion, but a president unmistakably violates his duty when he refuses to enforce the law because he wants a crime to occur—when, for example, he hopes to advance his own interests through the criminal conduct of others. As abundant evidence shows, that’s what transpired on Jan. 6.
Alschuler argues that while failing to stop a crime usually doesn’t make you an accomplice; there’s an exception when someone has “a legal duty to intervene.” He likens Trump to a cop who knows a robbery is about to occur and is conveniently absent when it does; there would be no barrier to charging the cop for aiding and abetting. Similarly, Alschuler argues, Trump’s failure to “ask the rioters to stop” makes him as guilty as those who stormed into the Capitol. Trump’s video message asking them to go home doesn’t suffice in Alschuler’s eyes since Article II, Section 3 obligated him to act earlier.
Alschuler thinks it would be straightforward to prove Trump wanted a crime to occur. Not only did he wait hours to tell his minions to back off, but there are multiple reports that Trump was absolutely giddy at the spectacle. He refused to act even as members of his own inner circle—as high up as his daughter Ivanka—urged him to do something. Even when he finally got around to recording a video message to the insurrectionists, it took multiple takes for him to finally deliver a clear message to end the madness.
There’s another reason Alschuler believes Trump’s inaction rises to the level of criminal conduct: He had a duty to prevent others from being harmed.
Even if his direction to march to the Capitol and “fight like hell” was not intended to start a riot, it led to violence and placed the Vice President and members of Congress in peril. A person who creates a physical danger—even innocently—has a legal duty to take reasonable measures to prevent injury from occurring. Someone who’s started a fire can’t just let it burn out of control.
This makes sense. Once it was apparent that Trump’s words put others in danger, he had a clear duty to intervene, and did nothing. Even if he didn’t actually want Mike Pence dead, there’s no dispute that he failed to act to protect him from harm.
Alschuler believes prosecuting Trump for his inaction would remove any roadblocks the First Amendment could throw up if he were ever held to account for the events of Jan. 6. While conceding that a court could rule Trump’s words at the “Save America” rally were protected speech, he believes that “Trump’s refusal to enforce the law” is absolutely fair game. In that case, even if his remarks were theoretically protected speech, “they could be received in evidence as proof of his intent.” Any potential ambiguity that existed when Trump (in)famously called for his supporters to “fight like hell” went out the window when they stormed the Capitol and he refused to do anything about it. This more than makes sense; as we all know, freedom of speech doesn’t mean freedom from responsibility or consequences for your words.
Looking back, seven of the 10 Republicans who voted to impeach—Reps. Liz Cheney, Anthony Gonzalez, Jaime Herrera Beutler, John Katko, Peter Meijer, and Tom Rice—explicitly cited Trump’s inaction as a factor in their vote. So it seems remarkable that no one has delved into this sooner. But looking back, it’s clear that at the very least, Trump’s actions on Jan. 6 amounted to a crime of omission—a crime that would, on paper, seem very easy to prove in court.
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