Could Trump Face Criminal Charges for January 6 Actions?

The head of the House investigatory committee seems to think so.

WaPo (“Thompson says Jan. 6 committee focused on Trump’s hours of silence during attack, weighing criminal referrals“):

The House committee investigating the Jan. 6 attack on the Capitol is focusing intently on Donald Trump’s actions that day as it begins to discuss whether to recommend that the Justice Department open a criminal investigation into the former president.

Committee Chairman Bennie G. Thompson (D-Miss.) said in an interview that of particular interest is why it took so long for him to call on his supporters to stand down, an area of inquiry that includes obtaining several versions of a video Trump reportedly recorded before finally releasing a message 187 minutes after he told his supporters to march on the Capitol during the rally that preceded the attack.

“It appears that he tried to do a taping several times, but he wouldn’t say the right thing,” Thompson said, basing his statement on information the panel has gleaned from interviews with witnesses as well as media reports about that day.

He said the president’s delayed response to the Capitol attack could be a factor in deciding whether to make a criminal referral, which is when Congress informs the Justice Department it believes a crime has been committed. It would be up to federal prosecutors to decide whether to pursue a charge.

“That dereliction of duty causes us real concern,” Thompson said. “And one of those concerns is that whether or not it was intentional, and whether or not that lack of attention for that longer period of time, would warrant a referral.”

So, I’d certainly be interested in knowing the content of the previous iterations of the video recording. Absent a specific criminal charge, though, I would really think that would fall into the tightest executive privilege space. I really don’t think it wise to set the precedent that the rough draft of Presidential speeches can be subpoenaed into a fishing expedition by the opposition party.

While I continue to believe that Trump both incited the riots and was derelict in his duty to stop them once they turned violent, neither of these are criminal acts. As I noted in multiple posts in the immediate aftermath, his actions fell well short of the incredibly high bar the Supreme Court has set for direct incitement. So, he’s morally but not legally culpable. While dereliction of duty is a crime for military personnel under the Uniform Code of Military Justice, it’s merely a political offense for a President.

Trump was rightly impeached for his actions that day and sadly but predictably not convicted by a Republican-majority Senate. Absent radically more evidence than I’ve seen, I just don’t think he will face any criminal liability because he has not committed any actual crimes.

As to what the panel hopes to find in the tapes, it’s not quite clear:

Before posting the video on his social media accounts, Trump sent tweets disavowing violence, but also urged followers to press on at the Capitol as they sought to prevent lawmakers from certifying the electoral college results and declaring Joe Biden the next president.

During that time, three rioters died and scores of police officers were assaulted, some with their own weapons, while dozens of lawmakers feared for their lives in hiding.

“He wasn’t telling the people to go home,” Thompson said, characterizing Trump’s behavior that day. “He wouldn’t tell them that this is not the way to do it. So I think, since the taping was recorded at the White House, we’ll have access to it.”

Again, we already know this. I remain skeptical that the exploratory value of the videos outweighs the damage to Separation of Powers it would do.

Much later in the piece, another theory of the case is revealed:

As for what crime the panel believes Trump may have committed, Thompson echoed the assertion made by Rep. Liz Cheney (R-Wyo.), the panel’s vice chair, that Trump’s actions could amount to criminally obstructing Congress as it sought to certify the election results.

He also said the committee is weighing other potential criminal referrals surrounding the pressure put on state and local officials to overturn the results of the election, along with whether people raised money for the rallies and events surrounding Jan. 6 while knowing the claims of election fraud were false.

The New York Times reported this week that the panel was looking at a possible criminal referral for Trump and others as part of its investigation.

I am not an attorney and the ins and outs of obstruction law are outside the bits of the law that I have confidence in as a political scientist (mostly Constitutional interpretation). Still, I’m really skeptical that there’s anything a US Attorney would want to take on a former President over here.

I do think there’s more likely to be fruit in pursuing Trump’s attempts to use the powers of his office to intimidate state and local election officials into falsifying election results. But, again, this is well outside my expertise.

I find this interesting:

Former federal prosecutor Randall Eliason said a referral from Congress has no legal effect. And in this instance, he said, Congress’s making referrals could hamper not only a possible Justice Department investigation, but also the lawmakers’ own inquiry.

A criminal referral, Eliason said, is mainly meant to “inform DOJ about something Congress has uncovered, if and when that might be useful.”

In an instance where a witness has lied to a committee in Congress in private testimony, a referral could be important because the Justice Department would not otherwise know about the falsehood. In an instance of criminal contempt, the law requires Congress to make a referral for the Justice Department to proceed, Eliason said.

“Here, DOJ is fully aware of these same events, so Congress wouldn’t be telling Justice anything that it didn’t know, in terms of the overall events of Jan. 6,” Eliason said of a possible criminal referral regarding the former president. “And I think the downside in a case like this is, it’s going to feed into any claim from Trump or anyone else who might be charged that this is really just a political witch hunt.”

Eliason said the committee’s focus on criminal referrals could also boost the claims of those resisting subpoenas that lawmakers’ inquiry doesn’t have a legislative purpose, but rather, is meant to uncover crimes.

I wouldn’t want to be the one testing it out in court but it’s a plausible argument.

FILED UNDER: *FEATURED, Capitol Riot, Congress, Crime, Donald Trump, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    While I continue to believe that Trump both incited the riots

    I’m pretty sure incitement to riot is a criminal act

    9
  2. Sleeping Dog says:

    An indictment of TFG would be a nice xmas gift, but it doesn’t seem that they have built a case yet.

    1
  3. Scott F. says:

    I really don’t think it wise to set the precedent that the rough draft of Presidential speeches can be subpoenaed into a fishing expedition by the opposition party.

    While I continue to believe that Trump both incited the riots and was derelict in his duty to stop them once they turned violent, neither of these are criminal acts.

    So as to not be a “fishing expedition” the Select Committee inquiry must have a legislative purpose. It seems to me the easiest argument to make to establish legislative purpose is that it should be a criminal act for an elected official to incite a riot or to be negligent in their duty to prevent violence. The First Amendment wouldn’t protect the incitement and criminal negligence has precedent. (IANAL acknowledgement here.)

    3
  4. CSK says:

    Here’s the entire speech Trump gave before the insurrection:

    http://www.npr.org/2021/2/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial

    2
  5. gVOR08 says:

    This has been the problem all along. As with the old line about military contracting, and much else, the scandal isn’t what they do that’s illegal, the scandal is what’s legal.

    DOJ, in the 1/6 prosecutions, seems to be working hard to establish that impeding the vote count in Congress is obstructing a government proceeding, a Federal felony. Failing to act to prevent such obstruction may then be criminal dereliction of duty on the part of the then President*. Support of insurrection would be better, as being convicted would Constitutionally bar him from holding Federal office. A boy can dream.

    If what TFG did is not illegal, it obviously should be. So there’s your legislative purpose, in spades.

    7
  6. Stormy Dragon says:

    I really don’t think it wise to set the precedent that the rough draft of Presidential speeches can be subpoenaed into a fishing expedition by the opposition party.

    I’m FAR more worried about setting the precedent that an attempted coup carries no penalty as long as it was unsuccessful.

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  7. James Joyner says:

    @MarkedMan: Yes. But, as noted later in the post, while I believe he’s morally culpable for inciting the riot, he’s clearly not legally liable.

    @Scott F.: The Supreme Court has set the bar very high under 1st Amendment grounds.

    @Stormy Dragon: The problem is proving that he did something illegal.

  8. MarkedMan says:

    @James Joyner:

    he’s clearly not legally liable.

    It’s way too early to determine that. I wouldn’t be surprised if they found evidence that he wanted a riot. At tha5 point his speech would definitely be strong evid3nce for incitement.

    4
  9. gVOR08 says:

    @Stormy Dragon: I am of late frequently reminded of Lincoln’s suspension a couple weeks after Sumter of habeus corpus for a number of secessionists in Maryland. He was a very good lawyer, he knew his actions were illegal. He also knew the Supreme Court would eventually rule against him. But by then Maryland secession would be defeated and the national capital would not be surrounded by Confederate territory. Which is to say his actions were justified in a way no conservative ever seems to understand, it was necessary.

    5
  10. Kathy says:

    I don’t know whether he will, but there’s no doubt in my mind he should. Also he should be convicted and spend the rest of his days locked up, even if it is at a Club Fed.

    And the indictments should be published on Twitter, so everyone knows about it before Little Benito does.

    5
  11. Daryl and his brother Darryl says:

    There is enough evidence in the public sphere, today, to convict him. Trump’s lawyer already went to jail for something Trump was involved in. Hell, Mueller laid out the case for Obstruction years ago. The Georgia phone call is on tape. A 1st year law student at Trump University could prove Conspiracy to Obstruct a Government Proceeding.
    The biggest problem by far is finding someone with the balls to actually charge him.
    Mueller – nope.
    Vance – nope.
    Garland – he is so absent that his face should be on a milk carton.

    8
  12. Stormy Dragon says:

    @James Joyner:

    The problem is proving that he did something illegal.

    No, the problem is Status Quo Warriors insisting on dealing with this through a legalistic frame so they can avoid responsibility of having to do something about an insurrection.

    9
  13. From an utterly practical POV, James’ skepticism about letter of the law illegality are almost certainly correct. Further, there is a deep cultural aversion to holding past presidents accountable, partly for fear of what that might create for the future. But, also, despite all of the “republic” talk and having a government of “laws, not men” we treat the president/former presidents as special and simply do not apply the same standards to them that we apply to others. Part of the problem is that we make them head of state as well as head of government.

    We also have no real mechanism to deal with presidential malfeasance or maladministration (impeachment is largely toothless). The closest we come to consequences are losing re-election, but that is not really all of that much of punishment.

    3
  14. James Joyner says:

    @Stormy Dragon: There is no way to prosecute someone for a crime in other than a legalistic framework. Politically, there was impeachment. Morally, there’s the court of public opinion. But crime is a purely legal construct under our system.

    4
  15. James Joyner says:

    @Steven L. Taylor: Agree 100%.

    3
  16. Put another way: there is some truth that we elect a kind of king every four years (this is both a little hyperbolic, but also maybe a little too true, as the Trump presidency helped underscore).

    Kings tend to get away with a lot.

    (And we can all thank the universe that Hamilton’s plan for an elected, lifetime tenure president was rejected by the convention).

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  17. @Stormy Dragon:

    dealing with this through a legalistic frame

    Honest question: what other framework would you suggest?

    And keep in mind, I think that Trump deserves serious consequences, as do a host of his cronies. But if the legal structures provide no pathway to create those consequences, what is your view on how to generate them?

    2
  18. Stormy Dragon says:

    @Steven L. Taylor:

    c.f. The Whiskey Rebellion and the Pancho Villa Expedition

    When it comes to a fundamental challenge to the government’s authority over the territory of our nation, the law doesn’t require the government to individually try each conspirator one at a time.

    1
  19. Mikey says:

    Could Trump Face Criminal Charges for January 6 Actions?

    Not a snowball’s chance in the Sun’s core.

    I’ll go on record now as saying: Trump will never be held to account for anything he did while in office, nor for anything he did before or will do after. He will die, far too old (because scum like him always seems to live for-fucking-ever), a free man, never having served a picosecond behind the bars he so thoroughly earned.

    There is far too little justice in the world to go around to all those who deserve it.

    5
  20. ImProPer says:

    “While I continue to believe that Trump both incited the riots and was derelict in his duty to stop them once they turned violent, neither of these are criminal acts.”

    Inciting a riot, is definitely a criminal act. See US code 2102. Inciting one to subvert the Democratic process is nothing short of treason.
    I won’t disagree that being derelict in one’s duty is not criminal per say, but there are degrees of incompetence that does. ie involuntary manslaughter comes to mind. This would be a rightful course of investigation by the committee imo.
    Personally I am of the mind that our country has a serious problem in our legal system with unfair justice towards our most vulnerable citizens. I am always worried when the understandable temptation to use arbitrary justice to take down the powerful figures is great. In this case feel a sense of gratitude that there are a few Republicans that are putting country before party, and ensuring a impartial reviewing of the evidence.

    2
  21. Stormy Dragon says:

    @Stormy Dragon:

    When we stormed the beaches at Normandy, it wasn’t so that V Corps could serve individual subpoenas to the soldiers of the Wehrmacht following their indictment in federal court.

    2
  22. Stormy Dragon says:

    @James Joyner:

    There is no way to prosecute someone for a crime in other than a legalistic framework.

    I’d note there is a distinction between “legal” and “legalistic”. Endlessly tying up justice with red tape that prevents favored people from ever being held accountable for their actions does not maintain the rule of law, it thwarts it.

    3
  23. James Joyner says:

    @Stormy Dragon:

    When we stormed the beaches at Normandy, it wasn’t so that V Corps could serve individual subpoenas to the soldiers of the Wehrmacht following their indictment in federal court.

    You don’t distinguish between international war and criminal proceedings against US citizens? I’m genuinely confused as to what you’re trying to argue here.

    @Stormy Dragon:

    Endlessly tying up justice with red tape that prevents favored people from ever being held accountable for their actions does not maintain the rule of law, it thwarts it.

    Okay. But what are you suggesting? One man’s red tape is another’s due process.

    1
  24. James Joyner says:

    @ImProPer:

    Inciting a riot, is definitely a criminal act. See US code 2102.

    I’m well aware. As noted later in the post, though, I’m also well aware of a number of Supreme Court decisions that makes “incitement” a very, very narrow act that Trump did not commit.

    Inciting one to subvert the Democratic process is nothing short of treason.

    It’s disloyal. It is not, however, Treason as defined, again very narrowly, in the US Constitution.

    3
  25. Michael Reynolds says:

    The way to punish people who want to destroy our system of laws is not to destroy the system of laws ourselves.

    4
  26. MarkedMan says:

    James, I think you are once again falling into the trap of evaluating every action individually, and then saying, “we can find a way to interpret this as falling just this side of the law”. That’s not the way the law works and that’s not the way trials work. The totality of one’s actions and speech must be weighed. I’m not saying we definitely have enough evidence to charge him, I’m saying we don’t know yet. I’m honestly puzzled why you are so sure there is insufficient evidence. As far as we know only the Congress is actually investigating and they have not yet issued a report yet.

    3
  27. Kathy says:

    We’re a bit in the position of the winning side in the English revolution: who dares to kill the king?

    Add in Saint-Just’s maxim from the French revolution: no one can reign innocently.

    The result is “If we go after Donnie, who deserves prison on a myriad reasons, they will come after Biden or some other future Democratic president. And then it’s chaos or civil war or more likely both.”

    I think this is true. the one major difference is Donnie the Cheeto is very likely guilty of outright crimes, not just hardball politics or underhanded policy maneuvers. no one wants to go after him for the child separation policy, or the transgender ban in the military, or the misappropriation of funds for his wall, etc. Rather for attempting a coup, trying to defraud the government, for obstruction of justice, etc.

    When the GQP wants payback, they will likely indict Biden or someone else for wearing tan or signing a law they didn’t like, or implementing an executive order that galls them, or for forcing vaccines onto people, etc.

    We should go ahead anyway. For one thing, the courts are not totally corrupt. For another, and more importantly, the republicans are hell-bent on imposing their brand of authoritarian minority rule. They have to turn authoritarian, if not totalitarian (think “Christian” theocracy), if they want to keep minority rule. they won’t be stopped by the Democrats “respecting the office if not the creature making use of it.”

    I find this quote applicable: Damn the torpedoes. Full speed ahead!

    6
  28. OzarkHillbilly says:

    @Steven L. Taylor: We also have no real mechanism to deal with presidential malfeasance or maladministration (impeachment is largely toothless).

    To say nothing of war crimes.

    5
  29. James Joyner says:

    @Stormy Dragon: The Pancho Villa expedition simply makes no sense as a comparison; foreign wars are not domestic criminal matters.

    The Whiskey Rebellion is more apt.

    It’s true that, in a nascent court system that operated much differently than ours does now, Washington was able to get an advisory ruling from the Supreme Court, which found that existing law allowed the use of the militia to put down an active rebellion. But I don’t know how that applies to trying someone for something that happened almost a year ago.

    Further, it turned out not to be true that “the law doesn’t require the government to individually try each conspirator one at a time.” We in fact tried two conspirators, found them guilty, and they were subsequently pardoned.

    I’m amenable to trying Trump. But for what?

    2
  30. Stormy Dragon says:

    @Kathy:

    The result is “If we go after Donnie, who deserves prison on a myriad reasons, they will come after Biden or some other future Democratic president. And then it’s chaos or civil war or more likely both.”

    In some hypothetical future case where they actually have the power to come after a Democratic former president, the idea that they will refrain from doing so because Trump was allowed to get away with stuff now seems laughably naive to me.

    12
  31. Stormy Dragon says:

    @James Joyner:

    The Pancho Villa expedition simply makes no sense as a comparison; foreign wars are not domestic criminal matters.

    The Pancho Villa expedition wasn’t considered a foreign war by the US government at the time. Pancho Villa was not the Mexican government and while the expedition went into Mexican territory, the basis for the action was maintaining US legal authority in Texas and the authorization for the expedition was under the militia act of 1903, not a declaration of war

    1
  32. Just nutha ignint cracker says:

    @James Joyner: If I were going to guess, Stormy is making the argument that the leaders of various second and third world autocracies are not wrong in how they deal with insurrectionists. Personally, I’m inclined to agree, but then again, I’m the guy who says that the use of “government” and “morality” in the same sentence frequently leads to conflicts of logic and cognitive dissonance, so I may not be the guy to go to for advice.

    1
  33. Stormy Dragon says:

    @James Joyner:

    Further, it turned out not to be true that “the law doesn’t require the government to individually try each conspirator one at a time.” We in fact tried two conspirators, found them guilty, and they were subsequently pardoned.

    Yes, after the rebellion was put down and government authority was restored.

    I fell like we’re in the period between the first battle of Bull Run and the start of the Pennisular Campaign during the civil war, where there wasn’t direct conflict for nearly a year, but it would be weird to suggest the Confederacy wasn’t in a state of insurrection.

    2
  34. Scott F. says:

    We also have no real mechanism to deal with presidential malfeasance or maladministration (impeachment is largely toothless). The closest we come to consequences are losing re-election, but that is not really all of that much of punishment.

    But is it not a purpose of legislation to create legal mechanisms to deal with bad acts where there hasn’t been recourse previously? The Select Committee’s stated mandate is to understand what happened on January 6th so as to prevent recurrence.

    Trump may never see the inside of a prison, but there’d be a modicum of satisfaction in having his legacy include his name on the Stop the Next Trump Act. Too late for Trump to face legal consequences for his actions, but that would be better than nothing.

    2
  35. Kathy says:

    @Stormy Dragon:

    Oh, absolutely!

    Remember the many times Democrats in Congress helped raise the debt limit when the other party controlled the White House? What happened recently the first time it needed to be raised under Biden?

  36. Stormy Dragon says:

    @Stormy Dragon:

    Ultimately, the legal system is an extension of government authority.

    Trying to respond to insurrection through a purely criminal law perspective is like a doctor noting that the immune system exists to defend against interruptions to homeostasis and therefor concluding that a gunshot wound should be treated by developing some sort of bullet vaccine.

    Just as the immune system can’t be expected to help when the core functions of the body are under attack, the legal system can’t be expected to help when the core functions of the government are under attack.

    3
  37. ImProPer says:

    @James Joyner:

    “I’m well aware. As noted later in the post, though, I’m also well aware of a number of Supreme Court decisions that makes “incitement” a very, very narrow act that Trump did not commit.”

    “While I continue to believe that Trump both incited the riots and was derelict in his duty to stop them once they turned violent, neither of these are criminal acts.”

    I appreciate your overall attempt in the post to be objective, which is called for in this instance. However I’m a bit confused, as both are indeed criminal acts, if he is indicted and found guilty.

    1
  38. ImProPer says:

    @James Joyner:

    “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” 18 US code 2381

    The actions, and inactions of the President on 1/6, at the very least, warrant suspicion imo. Overtly acting to subvert a free and fair election in a Democratic Republic is indeed treasonous. As to actual guilt, this is for the legal system to determine.
    Sorry for the 2 posts. I am on a cell phone and accidentally hit post button and was too slow to add in the edit time period sigh

    1
  39. @Stormy Dragon:

    c.f. The Whiskey Rebellion and the Pancho Villa Expedition

    Neither of those is an operative model.

    You can utterly rule out Pancho Villa given that that was about international interventions by the military against a foreign group.

    And I am not seeing the president rounding up a posse and going after a finite set of specific folks engaged in a very specific act.

    What am I missing?

    1
  40. @Stormy Dragon:

    When we stormed the beaches at Normandy, it wasn’t so that V Corps could serve individual subpoenas to the soldiers of the Wehrmacht following their indictment in federal court.

    True. But there was a declaration of war and the conflict was between countries. I understand your frustration, but surely you see the why this is not a viable model.

    Where is Normandy in this case?

    What are the opposing sides?

    Who is going to go kill whom to win the battle?

    2
  41. @OzarkHillbilly: This was in my mind as well when I typed the sentence.

    1
  42. @Michael Reynolds:

    The way to punish people who want to destroy our system of laws is not to destroy the system of laws ourselves.

    Agreed.

    But what does that mean in terms of practicality?

    1
  43. ImProPer says:

    @Michael Reynolds:

    “The way to punish people who want to destroy our system of laws is not to destroy the system of laws ourselves.”

    Simple, elegant, and true.

    1
  44. @Stormy Dragon:

    The Pancho Villa expedition wasn’t considered a foreign war by the US government at the time. Pancho Villa was not the Mexican government and while the expedition went into Mexican territory

    But, as it plainly obvious, going after a foreign national on foreign soil is one hell of a lot easier to do than going after Americans in America. This is just simply true. Plus, who is Pancho Villa in your scenario?

    Your scenario also ignores that a substantial number of Amerians voted for and support Trump. This makes action of the type you are describing more than a tad difficult.

    3
  45. I think what a lot of folks are missing here is that there is a lack of consensus about 1/6 that makes these obvious solutions a lot less obvious and actionable than is being argued.

    I mean, sure, if your faction can seize control of the government and intact your version of justice, you can accomplish that which has been stated. Beyond that, though, it is essentially impossible.

    Indeed, to accomplish the justice in question would require, ironically, your own insurrection.

    2
  46. dazedandconfused says:

    The most likely charge would seem to obstruction, both of the Congressional process of certifying the election and of it’s investigation. There are clear laws on that. Inciting a riot is highly unlikely, as IMO his plan was to have his people working on the inside while a crowd howled on the outside, in theory adding pressure to the arguments. Had he wanted the crowd to go into the building he wouldn’t have made that last ass-covering statement about going peacefully. He’s safe on that one.

    Perhaps during that 3 hours somebody at some point asked permission to dispatch the NG to help. If a record exists of him refusing to grant that permission it could be argued to a jury as evidence he obstructed steps to help end it. It seems plausible a jury might convict, but more plausible is a grand jury returning an indictment for that and other forms of obstruction and interference, if it is brought before one. It’s more than they had on the proverbial ham sandwich, no doubt.

    Those who think Garland is doing nothing are jumping the gun. The evidence is still coming in. Garland would be a fool to move as fast as possible.

    1
  47. Gustopher says:

    @Daryl and his brother Darryl:

    There is enough evidence in the public sphere, today, to convict him. Trump’s lawyer already went to jail for something Trump was involved in. Hell, Mueller laid out the case for Obstruction years ago.

    And Trump recently confirmed in an interview that the reason he fired Comey was to stop the investigation.

    We are nearing the statute of limitations on the Mueller stuff, by the way.

    1
  48. Kathy says:

    While there’s no question Benito El Cheeto deserves to face a trial and go to prison, and much as I’d love to see him perform the best perp walk ever, and much as the US and the world need this to happen, I feel it necessary to give the usual warnings.

    There have been plenty of chances to get trump. There was the Mueller report, which ought to have led to impeachment. there was the actual first impeachment, which should have led to removal (though it was a political question). and the second impeachment, which might have led to removal and permanent disqualification from office if Mitch had not played with the schedule

    Every time Little Benito got cover and succor from his party (and, face it, it is his party remade in his image). I don’t know, and to a point don’t care, whether this is because they are afraid of his base, or because they like how far he has succeeded in promoting the cause of minority rule and white supremacy. either way, the effect is the same.

    So whatever the Jan 6 Putsch committee finds, and whatever the NY legal system does,a nd whatever the DOJ decides to do, we know there are dozens of powerful GQP politicos ready to immolate themselves, if need be, for their precious tin despot.

    I intend to keep my expectations low.

    3
  49. Michael Reynolds says:

    @Steven L. Taylor:

    But what does that mean in terms of practicality?

    If a case can be made, it should be made. Trump should be treated like anyone else would be. We cannot get into the business of political prosecutions, but we should uphold the law. Beyond that IANAL and have no useful opinion on what laws may have been broken.

    1
  50. ImProPer says:

    @Steven L. Taylor:

    “We also have no real mechanism to deal with presidential malfeasance or maladministration (impeachment is largely toothless). The closest we come to consequences are losing re-election, but that is not really all of that much of punishment.”

    I’m gathering what you are scattering here.
    Indeed it may be a necessary evil. TFG has left behind much fodder for political, and constitutional scholars to debate about.
    I suppose we are in a sense fortunate that the glaring holes currently existing in our system were made apparent by such an incompetent, and bellicose fool. Hopefully we will learn, and be ready for a Trump 2.0 that can actually strategize.

  51. gVOR08 says:

    We’re looking at the inevitable result of not prosecuting Nixon, Reagan, and W. If we don’t deal with TFG, what on earth would deter the next GOP president from even worse? @Steven L. Taylor: notes we kind of elect a king. It isn’t just a word game to say that if we have a king, we do not have a republic. If sovereignty resides with the people, we must be able to hold the president to account. Either the rule of law applies to everyone, or we don’t have the rule of law.

    The GOP version is that 1/6 was just a demonstration that got out of hand, no one’s fault. But there are a lot of questions, like if not an attempt to obstruct a government proceeding, what was the point? And what the hell was the command center at the Willard Hotel trying to command? But most of this was done by lawyers who will have tried, however clumsily, to avoid provable crime. It may be difficult to prove a criminal charge against TFG. That does not mean we’re helpless.

    Right off the top, the Committee’s request for the tapes may be a fishing expedition. I’m good with that. Ken Starr certainly established a precedent for fishing expeditions.

    We are, hopefully, going to have a committee report that lays out TFG’s malfeasance in sickening detail. It won’t convince the MAGAts, nothing will. But maybe the real silent majority, and the supposedly liberal MSM, will understand. And while we can’t ex post facto TFG, we can propose laws to obstruct the next GOP coup. Maybe we can even embarrass ten GOPs into supporting cloture.

    The advantage cops have over crooks is that the crooks have to win every time, the cops only have to win once. As @Daryl and his brother Darryl: notes we have:
    – The obstruction charges Mueller declined to pursue because of the facially ridiculous OLC opinion that DOJ can’t indict a sitting president. He’s no longer a sitting president.
    – The call to Raffensperger, which seems a clear violation of GA election law.
    – Conspiracy to obstruct a government proceeding on 1/6.
    Also:
    – Michael Cohen was convicted. What about “individual-1”?
    – Solicitation of a bribe from the government of Ukraine, documented in the first impeachment.
    – Civil charges around absurdly flexible real estate valuations which may constitute criminal fraud.

    Merrick Garland may be thinking he’s cleaning up the DOJ and making it prim and proper and apolitical. All he’s doing is setting it up for the next GOP Att’y General to weaponized DOJ. Again. Hopefully Marcy Wheeler is right that he’s painstakingly building a case. But he’s running out of time.

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  52. OzarkHillbilly says:

    @Steven L. Taylor: Just filling in the blanks, Steven, for the less historically aware among us. 😉

  53. Barry says:

    James, your theory of ‘Separation of Powers’ is:
    The President is above the law.
    The President may attack Congress at will.
    Each Republican President may take the previous Republican’s most extreme actions as a floor for his actions.

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  54. Barry says:

    @James Joyner: “Yes. But, as noted later in the post, while I believe he’s morally culpable for inciting the riot, he’s clearly not legally liable.”

    James, you do not know that in the slightest. And from what we *do* know, a number of his officials were planning on overturning the election by any means necessary.