This article is a follow-up to the article I published on January 11th where I argued that Donald J. Trump could face criminal charges for inciting a riot, seditious conspiracy and treason. There has been a flood of reporting on the storming of the Capitol Building by pro-Trump insurrectionists, and with so much information coming forward in such a short time, it can be difficult to focus on key evidentiary material. In this article I will focus on several key items that have come out in the past few weeks which I believe are critically important items that Federal prosecutors for the Biden Administration need to focus on. This series of articles is predicated on the idea that Senate Republicans appear intent on turning Senate impeachment proceedings into a pathetic display of their cowardice and fealty to Trump, and that Democrats should therefore use the Senate Impeachment process as a means of eliciting evidence to support probable cause, and an ensuing legal proceeding.
18 U.S. Code §§ 2101 & 2383- Inciting a Riot and Seditious Conspiracy
Establishing guilt on these two charges requires prosecutors to establish two things:
1. That Trump's statements at the rally prior to the storming of the Capitol were a key factor in inciting the attack on the Capital Building, i.e. that Trump is clearly "responsible" for the attack occurring...
and
2. That Trump intended for his words to have that effect. Proving guilt requires that Donald J. Trump had a reasonable belief that his words would incite violent confrontations that would move Houses of Congress to depart from their normal order, and either delay, or entirely pre-empt, the certification of electors for President-Elect Joe Biden.
The key items from the past month which help to establish the two items required for proof of guilt were sworn statements from lawyers who are now representing individuals who participated in the insurrection; a statement from Kevin McCarthy that Trump bore "some responsibility" for the storming of the Capitol building, and the resignation letter from former Acting Director of the Department of Homeland Security Chad Wolf, which reiterated the claim that Trump bore "some responsibility" for what happened.
Albert Watkins, the attorney for Jacob Chansley, the suspect known as the "Q-Anon Shaman", who appeared in numerous photos of the Capitol Insurrection wearing pseudo-Native American style buffalo horn helmet, said in a CNN interview that his client "felt that he was there at the invitation of our President." Watkins went on to say "the words that were spoken by the President, mean something to my client and not just to my client they mean something to a lot of people. They listen to those words, and those words meant something to them, and they have a right to rely on the words of their President." The fact that lawyers representing individuals who stormed the Capitol are testifying in court and stating publicly that Trump's words were a key motivating factor that prompted their clients actions at the Capitol provides support to claims that Trump is responsible for inciting the attack on the Capitol Building. Prosecutors need to keep in mind that responsibility and criminal liability are not necessarily the same thing, and that statements from Trump supporters alone will not be enough to secure a conviction.
As mentioned in the last article, the best evidence for proving criminal intent, is Trump's attitude. At no point since January 6th has Trump expressed any kind of remorse for the violence that occurred at the US Capitol building. A normal person whose words become an incitement to violence typically demonstrates remorse and attempts to apologize profusely, and claims that their words were taken out of context. They do not verbally attack the people who were the target of the violence that they accidentally incited. With Trump there is no such demonstration of remorse, which leads to one of two conclusions: either he absolutely intended for their to be violence, and his mealy-mouthed after the fact claims that people should protest peacefully were just rear-guard attempts at a disclaimer, or he is not psychologically normal, and the presence of an advanced Cluster B personality prevents him from feeling or demonstrating remorse like a regular person. Prosecutors for the Department of Justice should enlist the help of psychologists who can perform interviews of Donald J. Trump, and provide an evaluation of his psychological condition.
Another element that can be used to establish intent is information regarding extensive security planning that occurred prior to the January 6th insurrection, and conflicting reports of actions taken by Capitol Police leadership, the National Guard, and the Acting Secretary of Defense. If it can be shown that there was a general expectation that violence could be an issue, and leaders of various Federal Agencies took actions that could be interpreted as limiting the ability of Federal Protective Services to control the crowd, then those parties must be made to answer for their actions. It is essential that subpeonas be issued to former White House Chief of Staff Mark Meadows, former White House Advisers Jared and Ivanka Trump, former Acting Defense Secretary Christopher C. Miller, former Capitol Police chief Steven Sund and any other parties whose names arise from the investigation who are identified as participants in White House discussions regarding rally and security planning for the event on January 6th that turned into an insurrection. Prosecutors should also subpeona Trump ally Roger Stone, who was photographed with pro-Trump insurgents on the morning of January 6th, as he is likely to have information on the nexus between the Trump White House, and various right-wing groups and GOP donors who were involved in organizing the attack.
An additional charge: 18 U.S. Code § 595 - Interference by administrative employees of Federal, State, or Territorial Governments
This section of the US Code makes it illegal for anyone who works for a Federal Agency to try to use their official authority to try to interfere in the outcome of a Federal Election. When Donald Trump said publicly and repeatedly that the Vice President could arbitrarily throw out slates of electors, and substitute electors from pro-Trump organizations that had no official standing in the states they claimed to represent, he was effectively using his position as Mike Pence's boss to tell him to violate Federal law. Any arguments that are presented to try to justify the action are irrelevant, when those arguments have already been thrown out by Federal Courts for lacking either standing or merit. We know that Trump intended for Pence to throw out electors because he signed on to a lawsuit brought by Texas Attorney General Ken Paxton arguing that position. That case was thrown out of court. The legal question that would be put to justices if someone were to try to deny Trump's culpability would basically be: is a Federal official guilty of illegally interfering in a Federal Election, if he fails or refuses to complete a Constitutionally mandated process for the tallying of electoral college votes, and attempts to justify his actions with claims that have already been reviewed and struck down by a Federal judge? The obvious answer to that question is yes, that person is guilty of violating Federal Law, and because we have absolute proof that Trump intended for Pence to violate the law, and made angry and threatening tweets against Pence after Pence declared that he did not have authority to throw out slates of electors certified by the states, it becomes impossible for Trump to make any legitimate claim that he did not intend for the presence of his angry mob might engage in acts of intimidation or harassment that would induce Congress to abandon their responsibilities as outlined in the Constitution.
With Republicans apparently intent on turning the Senate Impeachment of Donald Trump into a show trial, it is incumbent upon Democrats to use their time to elicit as much information as possible to add to the mountain of evidence that will establish probable cause for a Department of Justice proceeding against Donald J. Trump. Special attention should be paid to the matter of Trump's behavior on January 6th, as news of the insurrection began appearing on television. If witnesses are called, then individuals who were in the White House both in the days leading up to the rally, who would have firsthand knowledge of any security planning efforts that took place, and those were in the White House during the rally who can attest to Trump's behavior as news reports came in should be of primary importance. It is also necessary to establish that regardless of the violent acts that occurred, Trump very clearly intended that the presence of his supporters would induce Congress to abandon a Constitutionally mandated procedure for the tallying of electoral college votes. If Democratic Senators can make the most of the opportunity they have, then a successful conviction via a criminal proceeding against Donald J. Trump is practically guaranteed.
Image credit: Interior: US Court of Appeals for the DC Circuit: http://www.cafc.uscourts.gov/
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I tried to have a civil debate with you in the comment section of the Hill on the subject of the impeachment and like most far left morons you went off the deep end and got nasty. In the wake of the acquittal, just thought I would stop by and have a good laugh at your expense and rub it in with a good ole "I told you so".
ReplyDeleteIf you had bothered to read my article you would notice that I predicated my statements on a future Department of Justice proceeding, as I fully expected the Senate vote to be a s how of GOP fealty and cowardice. McConnell's tirade about Trump being morally responsible for the mob confirmed my suspicions absolutely.
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