This site has reported – on several occasions – that there are very few crimes that punish someone for “not doing something,” and the crimes that do exist almost always involve children and vulnerable adults. We continually hear about Trump sitting and watching the insurrection for 187 minutes as if it were a crime in and of itself. It would be if Trump was in the military, where dereliction of duty is a crime. Unfortunately, as we all know, our military is under civilian leadership. One could impeach Trump for dereliction of duty, but not charge him.
But the “187 minutes” is important. Indeed, it is critical, as Boston lawyer James Doyle writes for the Crime Report. All crimes require some kind of proof of state of mind (there are a couple of exceptions, statutory rape being one of them, Matt Gaetz!). The 187 minutes goes a long way in proving that Trump wanted the crowd to interfere with Congress in a way that would overthrow the election. In other words, the 187 minutes helps prove that he was in on keeping Congress from doing its job.
Doyle sets forth the target crime:
The federal crime of Seditious Conspiracy is set out in 18 United States Code §2384. In relevant part it states that:
If two or more persons . . . conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . .they shall each be fined or imprisoned not more than 20 years, or both.
This site hates being repetitive but given that this may be the most important prosecution in the history of the nation, some leeway can be forgiven. The keyword is conspiracy and when it comes to Trump conspiring in this crime one looks directly in two places, the people around him at the speech at the Ellipse (and its overriding purpose) and the people in the War Rooms at the Willard Hotel, where Peter Navarro and Steven Bannon were running “Operation Green Bay Sweep.” (For the love of God, they even named the plan something that sounds like they wanted a heard of insurrectionists to “sweep” all lawmakers out of the Capitol, throwing the entire matter beyond the Constitution).
Doyle sets out a similar dynamic (if not identical) to that which we’ve published:
A prosecutor could also choose to investigate and present to a grand jury of citizens a streamlined case confined to Trump and his inner circle.
A prosecutor could do that in a day. Half of the evidence you need is on video; the other half is available in published texts, memoirs, and interviews.
By doing that, you would be initiating a criminal process that is hostile to the grueling rounds of interlocutory appeals and collateral litigation that have characterized the Congressional investigations and the civil suits attacking Trump’s actions over the years.
Appeals? OF COURSE there would be double figures appeals, that is not the point. The point is the attempt to hold him accountable. It is highly highly unlikely that Trump will ever see a jail cell, but that doesn’t make a conviction “nothing.”
From that point on, Doyle starts questioning whether it is worth the prosecution and, Garland’s misdirection (which we also reported upon here) about starting at the bottom of the pyramid and working one’s way up. Yes, that is the way one prosecutes a drug ring, but not if the guy at the top committed the ultimate felony on television and a phone call or two that someone testifies to.
As the elements are laid out above, all one needs is an agreement (Trump agrees this is a good idea), Trump making one act – even a small one, like giving a speech telling people to fight fight fight, or a call to the War Room to see how it’s going, and then the attempt to stop the government, which happened live on television in front of our faces. The case is made, appeals and all.
There is one other element in a conspiracy case that everyone needs to know. One cannot make it through a criminal law class in law school without hearing over and over and over, that “conspiracy” is a powerful tool in the prosecutor’s arsenal. “Why?” Because one can introduce hearsay evidence. “Hearsay” is an element of the crime of conspiracy. (e.g. “And what did Trump say when you suggested lighting fires outside the Capitol?”) Normally that question doesn’t come into evidence; “Objection, hearsay.” In a conspiracy, it is evidence.
Doyle takes his article off into the wilderness where he debates himself over whether it is worth charging a president, and if Garland and Biden are making a mistake in believing Trump is too small, too idiotic, his own worst enemy, and not worth prosecuting. It only takes one MAGA on the jury to ruin the entire thing.
No, it is worth it. Once in a while, prosecutors will take people to trial even though they’re not positive they have the admissible evidence needed. (They are sure he is guilty beyond a reasonable doubt). But a prosecutor may decide to go to trial because “This guy’s past behavior warrants putting him through a trial to at least hold him somewhat accountable for these continued actions.”
Trump needs to be charged and, either have a deal worked out, or put through a trial at least once in his life, in order to have to directly face a criminal charge with his name on the cover sheet. If nothing else, it could make him a bit more careful next time.
But to get back to our thesis, a crime was committed, no doubt. Congress was attacked. Trump sat for 187 minutes, which is powerful evidence that he wanted that crime to occur. All one needs to prove is that Trump knew something “like that” was planned to stop Congress, and agreed to do his part, whether it was giving a speech, or refusing to call in some kind of support.
In any other context, this would be a rather easy prosecution and one that would definitely start at the top, not with the guy that threw a brick through the window.
Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest as a dual Canadian-American citizen, which he grows increasingly thankful for every day. He now enjoys life as a single dad, writing from the beaches of the Gulf Coast, getting advice from his beloved daughter and teammate. He is very much the dreamy mystic that cannot add and loves dogs more than most people. He also likes studying cooking, theoretical physics, cosmology, and quantum mechanics. He likes pizza.
Please visit his Substack Newsletter, get the first month free: Much Ado About Everything: By Jason Miciak