The most recent public hearing of the January 6 Select Committee examined President Donald Trump’s conduct during the 187 minutes he refused to ask his supporters to end their violent occupation of the Capitol. This article shows that Trump’s acts and omissions during this time constituted the crime of insurrection, a crime that has gone largely unmentioned in the discussion of his possible criminality. This crime is defined in part as “assist[ing] … any … insurrection against the authority of the United States or the laws thereof, or giv[ing] aid or comfort thereto.”
The primary focus of commentators (and perhaps of an investigation by the Justice Department) may be misplaced. Searching for evidence that Trump planned, approved, criminally incited, or conspired to commit the violence of January 6 before it happened, they may have neglected the evidence that he aided this violence after it began.
This article will (1) review Trump’s acts and omissions on January 6; (2) describe the crime of insurrection; (3) consider the legal significance of Trump’s refusal to ask his supporters to end their violence; (4) consider the significance of his mid-riot tweet denouncing Mike Pence; (5) explain why prosecution for insurrection wouldn’t pose the same difficulties as prosecution for seditious conspiracy; and (6) explain why convicting Trump of insurrection would clarify his responsibility for the violence of January 6.
President Trump’s Acts and Omissions on January 6
The principal theme of the Select Committee hearing was Trump’s “dereliction of duty.” Live testimony, exhibits, and video clips showed that, rather than accede to the pleas of White House officials, members of Congress, two of his children, Fox News personalities, and others to urge the attackers to go home, Trump egged them on.
At 2:24 p.m., about an hour after Trump learned of rioting outside the Capitol and soon after Senator Tommy Tuberville informed him of the vice president’s removal from the House Chamber—and just as Secret Service agents were saying that the last opportunity to move the vice president from an office just off the Senate floor to a safer place could disappear within minutes—the president tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
That message gave many rioters their first word that the vice president wouldn’t do what Trump had told them he must do—invite the states to reconsider their certification of electors. Although Pence had told Trump repeatedly that he had no authority to do it, Trump had announced falsely on January 5 that he and Pence were in “total agreement” that Pence did have that authority.
Early on the morning of January 6, Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency. . . . Mike can send it back!” At 11:20 a.m., the president had a heated phone conversation with the vice president, apparently denouncing him as a “wimp” and a “pussy” and voicing regret for choosing Pence as his running mate four years earlier. The vice president nevertheless insisted that he wouldn’t do what the Constitution didn’t allow him to do.
Trump evidently concluded that stronger persuasion was needed. Against the advice of legal counsel, his remarks on the Ellipse calling for a march to the Capitol focused often on Pence:
I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.
All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.
I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.
So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.
And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.
And Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you.
Mike Pence has to agree to send it back. [The crowd then chanted “send it back.”]
Shortly before Trump left the stage at 1:10 p.m., Pence made his refusal public. As the joint session of Congress to certify the results of the presidential election was about to begin at 1:00 p.m., Pence released a letter explaining why the Constitution didn’t allow him to refuse to count state-certified electoral votes or delay the proceedings.
After Trump’s tweet that Pence “lacked the courage to do what should have been done,” violence at the Capitol surged. A rioter conveyed the news with a bullhorn: “Mike Pence has betrayed the United States of America.” Another called Pence “a traitor who deserves to be burned.” Upon learning that rioters were chanting for Pence to be hung, Trump indicated to advisors that he thought the vice president deserved it.
The witnesses who presented live testimony at the Select Committee hearing were officials in the Trump White House—Deputy National Security Advisor Matthew Pottinger and Deputy Press Secretary Sarah Matthews. Trump’s tweet prompted both of them to resign that day. Both invoked the same metaphor: The president had poured gasoline on the fire.
An Applicable Statute
Harry Litman, a former U.S. Attorney and Deputy Assistant Attorney General and the legal affairs columnist of the L.A. Times, notes that “name that Trump crime” has become a popular parlor game. In all the writing about Trump’s possible crimes, however, the one that most clearly fits his acts and omissions on January 6 has barely been mentioned.
Just Security’s 37-page compilation of evidence bearing on Trump’s criminality focuses on the two federal crimes a judge already has found that he is likely to have committed (conspiracy to defraud the United States and obstruction of an official proceeding) and the principal state crime now under investigation by a special grand jury in Fulton County, Georgia (solicitation of election fraud). Barbara McQuade’s “Model Prosecution Memo” mentions other possible offenses, including seditious conspiracy. Eleven Oath Keepers and five Proud Boys have been indicted for this offense, and three of the Oath Keepers have pleaded guilty. It’s the most serious crime with which any of the insurrectionists have been charged.
As best I know, only a Lawfare post by Joshua Braver has seriously considered the applicability of a statute Congress enacted in 1862. The Congress that approved this statute had in mind people who supplied the Confederate army with intelligence or materiel, but its authors wrote it as though they foresaw President Trump’s conduct on the afternoon of January 6. The statute is headed “Rebellion or Insurrection,” and it says in relevant part:
Whoever … assists … 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.
Of the various criminal statutes potentially applicable to President Trump’s efforts to upend the presidential election, only this one purports to bar a convicted offender from holding federal office. But Congress may lack the power to disqualify someone from holding an office like the presidency whose qualifications are specified in the Constitution. This article doesn’t discuss that issue or any of the others raised by the statute’s disqualification provision.
The words assist and give aid or comfort seem to mean about the same thing as each other and as the words aid and abet in the federal statute concerning accomplice liability. (This statute declares that someone who aids a crime is a “principal.” She’s guilty of the same crime and subject to the same punishment as the criminal she aids and as someone who commits the crime without assistance.) Even more clearly than the accomplice-liability statute, the insurrection statute doesn’t require the prosecution or identification of a particular offender the accused has aided. Aiding an insurrection is one way to commit the crime of insurrection itself.
Insurrection means “combined resistance” to “lawful authority” with an intent to deny the exercise of that authority. The resistance must be “so formidable as for the time being to defy the authority of the United States” and so significant that it cannot be addressed by ordinary law enforcement.
In 2020, when White House officials maintained that some Black Lives Matter protests constituted an insurrection and proposed using the military to suppress them, the Chairman of the Joint Chiefs of Staff, General Mark Milley, pointed to a picture of Abraham Lincoln. He reportedly told President Trump: “That guy had an insurrection. You don’t have an insurrection. When guys show up in gray and start bombing Fort Sumpter, you’ll have an insurrection.”
Guys with Confederate flags did show up. They attacked, not Fort Sumpter, but the U.S. Capitol in an effort to disrupt a joint session of Congress and halt its certification of the result of a presidential election. President Trump didn’t ask the military or any other agency to suppress this insurrection, but Vice President Pence did. General Milley testified that Pence “was very animated, very direct.” Pence said: “Get the military down here, get the guard down here. Put down this situation.”
At least twenty judicial opinions have used the word “insurrection” to describe the January 6 attack, and so did Congress in a statute awarding gold medals to the police heroes of that day. The single article of impeachment approved by the House of Representatives one week after the attack was headed “Incitement of Insurrection.” On February 13, 57 senators voted to convict Trump of this offense, ten short of the two-thirds needed to find him guilty. Many of the senators who voted against conviction did so because they thought the Senate lacked jurisdiction to try Trump after he left office. Several noted that the former president remained subject to criminal prosecution.
As the Select Committee hearing approached, several commentators observed that President Trump’s refusal to call on his supporters to end their occupation of the Capitol wouldn’t itself be a criminal act. They noted that “dereliction of duty” is a crime under the Uniform Code of Military Justice, but the Code doesn’t apply to civilians, not even the commander in chief.
In a Just Security essay published last October and reprinted on the day of the hearing, I noted (in advance) what these commentators missed. I wrote that Trump’s “refusal to enforce the law would make him an accomplice to every … crime he sought to promote.” Abundant evidence now shows that Trump intended to promote the insurrection itself.
My essay noted: “Failing to prevent a crime usually does not make someone an accomplice, but it is sufficient when this person had a legal duty to intervene.” I failed, however, to convince Randall Eliason, who wrote: “Maybe. But . . . the Department of Justice is unlikely to rely upon such a [novel and controversial criminal] theory for something as consequential as the prosecution of a former president.”
I hadn’t thought that the principle I described was novel or controversial. I’d taught it for fifty years and never noticed any doubt about it.
In a prosecution of Trump for insurrection, the government would be entitled to a jury instruction like this one:
Ordinarily, to commit an offense, a defendant must commit a conscious and voluntary act, with the required state of mind. … However, a failure to act or an omission can be the basis for criminal responsibility if the government proves beyond a reasonable doubt that the defendant had a legal duty to act, but failed or omitted to perform that legal duty with the required mental state.
This instruction is drawn from the Model Criminal Jury Instructions for the Third Circuit on that court’s website. They add this comment to an instruction concerning accomplice liability:
A defendant may … be responsible as an accomplice (aider and abettor) based on his or her failure to act despite having a legal duty to act. When the government’s theory is that the defendant was an accomplice through failure(s) to act or omission(s), the court should give [the instruction on criminal omissions quoted above].
The principle set forth in these instructions would convict a police officer assigned to guard the Capitol who abandoned her post as rioters approached because she hoped they would violently disrupt a joint session of Congress and keep President Trump in power.
President Trump’s legal duty closely resembled the police officer’s. His duty, however, was imposed by Article II, Section 3 of the Constitution, which provides: “[The president] shall take Care that the Laws be faithfully executed.” This provision doesn’t require full enforcement of the law. It demands only a president’s good faith. And even a deliberate violation of this presidential duty isn’t itself a crime. The purpose of the violation must be to assist the commission of an insurrection or another identified crime. In short, President Trump’s duty to act did no more than make his refusal to act the equivalent of an affirmative act. Every other requisite of criminal liability remained in place. Prosecutors would not be required to show an act—a willed muscular contraction—to prove Trump guilty of insurrection, but they would be required to show an affirmative, conscious decision.
How much “aid and comfort” does the insurrection statute require? Eliason wrote: “Another difficult legal issue … would be causation. … [P]rosecutors would have to prove beyond a reasonable doubt that Trump’s earlier intervention would have made a difference.”
If “causation” were truly an issue, “making a difference” wouldn’t be difficult to show. Stephen Ayres, a participant in the insurrection, told the Select Committee that he and the others in his group departed when, at 4:17 p.m., President Trump posted a video telling the rioters: “Go home, we love you, you’re very special.” Ayers testified: “We literally left right after that come out. You know, to me if he would have done that earlier in the day, … maybe we wouldn’t be in this bad of a situation.” The many officials, friends, and family members who pleaded with the president to call off his supporters didn’t doubt that his action would have made a difference.
Moreover, not even a smidgen of “causation” is required. A year after Congress made insurrection a crime, Supreme Court Justice Stephen Field instructed the jury at the conclusion of a trial for committing this offense. He said: “It is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful and actually render assistance.” Field offered an illustration: “So if a letter containing important intelligence for the insurgents be forwarded, the aid and comfort are given, though the letter be intercepted on its way.”
Prosecuting Trump for his refusal to take any step to halt the insurrection of January 6 wouldn’t be avant-garde or iffy. It would be what I called in October “the easiest case for the prosecution.” The president’s dereliction of duty and approval of his followers’ monstrous attacks would be likely to appall a jury, and well-established law would authorize his conviction.
Encouragement by Tweet
Although Trump’s mid-insurrection tweet was an affirmative act, it also was speech. Did the First Amendment give the president a constitutional right to inform the rioters (and everyone else) of Pence’s action and perceived perfidy?
A prominent Fourth Circuit decision gives this answer: “[S]peech … that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment.” The author of this categorical declaration 25 years ago was J. Michael Luttig, a noted jurist who, after leaving the court, was quoted by name in Pence’s January 6 letter and who recently gave memorable testimony before the Select Committee. Luttig wrote that “long-established caselaw” recognized the rule he stated, and no federal decision since then has disapproved or questioned it.
A Supreme Court decision holds that advocacy of unlawful conduct is punishable only when it is “directed to inciting or producing imminent lawless action and is likely to produce such action,” but the Fourth Circuit held this ruling inapplicable. Even if the First Amendment did require an imminent likelihood of lawless conduct, spurring on violence already underway would be a paradigmatic example.
The Supreme Court considered a case of verbal encouragement in 1893. A mounted rider twice pointed his rifle at his victim and withdrew it. Then he pointed the rifle a third time and killed the victim. When the rider initially withdrew his rifle, John Hicks laughed, and when the rider aimed his gun the last time, Hicks shouted to the victim: “Take off your hat, and die like a man.” The Court reversed Hicks’s murder conviction because the trial judge didn’t instruct the jury that Hicks’s “words must have been used with the intention of encouraging and abetting [the shooter].” With some repair of the instructions, the Court indicated it would have affirmed Hicks’s conviction. It sent Hicks’s case back for a new trial. If today, amidst a violent confrontation between a Mafia family and a group of FBI agents, the boss of the Mafia family were to shout (or tweet) that his underboss was a traitor, he probably wouldn’t fare better than Hicks.
Comparing a Charge of Insurrection to a Charge of Seditious Conspiracy
A recent column by Harry Litman appeared with this headline: “There is a Gap in the Evidence We’ve Seen Against Trump. We Have to Rely on the DOJ to Fill it.” Although critics have faulted the Justice Department’s investigation for lagging behind the Select Committee’s, Litman asked his readers to be patient. He said that the Department wouldn’t “take the unprecedented step of prosecuting a former president unless the charge involved a grave crime against the U.S. Most likely, that charge would be seditious conspiracy. … [F]or most Americans, it captures the fundamental evil that Trump has wrought.”
Seditious conspiracy consists of an agreement to oppose by force the authority of the United States or to hinder the execution of a federal law. Little of the evidence revealed by the Select Committee indicates that Trump entered an agreement with anyone to use force.
Justice Department prosecutors may be investigating whether evidence exists to fill Litman’s gap. On the basis, apparently, of a DOJ leak, the Washington Post reported that there are “two principal tracks of [the department’s] investigation”:
The first centers on seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on Jan. 6. … The second involves potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged.
As Littman argues, a conviction of seditious conspiracy would establish Trump’s responsibility for the use of force in a way that a conviction of fraud would not, but there may be an easier way for the Justice Department to make the gap vanish: Shift the focus from agreement to assistance and from the period before the violent attack occurred to the hours after it started. As this article has shown, the evidence that Trump aided an ongoing insurrection is strong already. In a later article, I’ll describe the evidence presented by the Select Committee in greater detail, showing the limitations of a seditious-conspiracy charge and the strength of an insurrection charge against Trump.
An Army of Conspirators and Trump
In the 1930s, 88 accused participants in a multi-state drug-distribution network stood trial together in a New York federal court. The number of participants in the various nonviolent plots to defraud the United States led by Trump, Rudolph Giuliani, and Mark Meadows could be higher. For starters, the number of people who signed false certificates that they were presidential electors is 84—though some of these signers might not have intended to deceive and might in fact have been duped by others.
Which suspected participants to charge and how best to charge them are likely to be a challenge. Justice Department prosecutors would consider questions of double jeopardy (did Trump, Giuliani, and Meadows enter many conspiracies to defraud the United States or only one?); the admissibility of admissions by conspirators against others who might or might not have been part of the same conspiracy; whether different actors in different criminal schemes are sufficiently connected to charge them as one hub-and-spoke conspiracy; which defendants could be joined for trial; and how the logistical problems posed by large and lengthy trials should be resolved (including how often witnesses should be asked to repeat their testimony in different courtrooms).
However the Justice Department resolves these tough issues, it should—in the absence of currently unrevealed evidence—add a count charging Trump alone with assisting or giving aid or comfort to an insurrection against the authority of the United States or the laws thereof.
After White House Counsel Pat Cipollone testified that he couldn’t think of anyone on the White House staff who didn’t want the January 6 insurrectionists to leave the Capitol, a member of the Select Committee asked: “What about the president?” Cipollone replied: “Oh, I’m sorry. I—I apologize. I thought you said who—who else on the staff. I—I—I can’t reveal communications, but obviously I think, you know, yeah.” No one appears to have supported or encouraged Trump’s refusal to do his duty for 187 minutes, and no one appears to have supported or encouraged his inflammatory tweet about the vice president.
Attorney General Garland has said and reiterated: “The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law. … We will follow the facts wherever they lead.” Neither the Department’s investigation nor the Select Committee’s is nearing the finish line, but the dazzling investigative work of the Select Committee already has shown just where the evidence leads.
Editor’s note: Read part two of this two-part series: Albert W. Alschuler, Seditious Conspiracy vs. Insurrection: Assessing the Evidence Against Trump, August 19, 2022