Will ‘dereliction of duty’ be what ultimately indicts Donald Trump?

The House Select Committee hearings on the January 6, 2021 insurrection are formally separate from any criminal charges that may be brought against Donald Trump for his conduct relating to this event. But many people will think the committee’s work has failed if the Justice Department, which, according to the Washington Job, investigating Trump as part of his investigation, does not seek to indict the former president. What sets last Thursday’s hearing apart from the seven that preceded it is that it focuses not on Trump’s actions, but rather on his inactions. This session, the last before the committee resumes hearings in the fall, was arguably the most threatening for Trump so far, as, against all odds, evidence of what Trump failed to do, more that what he did, holds the strongest potential to make a successful criminal case against him.

One of the first lessons taught to American law students is that if you see a person drown and you can easily throw a rope to them but choose not to, your inaction may be morally wrong but you have not committed a crime. On the other hand, if the drowning person is someone you have a legal obligation to help, for example, if it is your spouse or your child, or if you are on duty as a lifeguard , or even if you accidentally pushed the person into the water – and you don’t do anything to help, you could be legally liable, even for criminal homicide. In other words, if individuals have a legal duty to act but choose not to, they could be held liable for the resulting harm, just like anyone else who acted to cause harm.

Thursday’s hearing considered this theory of liability, with panel members pointing to Trump’s “dereliction of duty” – that is, his special duty to act coupled with his firm refusal to act. – when his supporters, whom he had previously summoned to Washington, D.C., and then ordered to march to the Capitol and “fight like hell,” stormed the building, assaulted police officers, causing injury and death, and sought to harm Vice President Mike Pence and members of Congress as they fled. Evidence showed that Trump watched the siege carried out in his name on live television, fully aware of the violence his armed supporters were unleashing, and refused to do anything to try to stop it. for more than three hours. He rebuffed repeated requests from White House staff, Republican allies, members of Congress and his family to help end the attack. As his supporters chanted “Hang Mike Pence” and members of the vice president’s security detail perceived danger so grave they were calling their families to say goodbye, Trump, far from calling the crowd, judged good to tweet: “Mike Pence didn’t have the guts to do what should have been done. Trump even ignored a Pentagon effort to talk to him to coordinate a response to end the ongoing assault. White House staff received a clear message that the president did nothing to stop the violence. When, in a video released more than three hours after the attack began, he finally told his followers to “go home”, they dispersed, suggesting that if he had done so sooner they would would have listened, and the worst of the mess could have been avoided.

There is no federal crime of “dereliction of duty”. But the concept is important as a possible avenue to establish Trump’s criminal responsibility for the harm he has caused precisely by failing to act when he had a duty to try to stop his supporters. And this path may hold more promise than the other possible criminal charges that have been widely discussed in recent months.

Discussion of potential federal charges against Trump have focused primarily on the crimes of conspiracy to defraud the United States and obstruction of official process. The first would require proof that Trump made a deal with others to “swindle” the United States, that is, to use deception – such as the lie of a stolen election – to interfere with the tally of votes. electoral votes by Congress or to compel the DOJ to declare that the election was tainted with fraud. The second would require proof that Trump made a “corrupt” effort to influence, obstruct or obstruct the work of Congress. Both of these crimes are difficult to prove beyond a reasonable doubt, as they essentially involve establishing that Trump knew his stolen election claim was a lie when he engaged in the events related to Jan. 6. If he actually believed the claim, as many of his supporters seem to believe, then the jury may well find that in pushing to annul the election results he did not have the required intent to “fraud”. Likewise, if jurors found that Trump had been tricked into thinking the election was stolen, then they could conclude that his purpose in trying to influence the work of Congress was not “corrupt.”

The select committee hearings made it clear that Trump was repeatedly told, including by his own attorney general, William Barr, that Joe Biden had rightfully won the election. But the hearings did not firmly establish that Trump was convinced by those who told him so, not least because they also revealed that the fringe lawyers he spoke to from outside the White House fed him fanciful claims and conspiracy theories. Evidence that officials in the aftermath of Jan. 6 considered invoking the Twenty-Fifth Amendment to remove Trump from office won’t be particularly helpful for a criminal prosecution, as officials’ doubts about his mental capacity could also seed doubts among the jurors about his ability to form the strong criminal intent necessary for a conviction. The fact that he has since remained so firm and relentless in his claim of stolen elections will strengthen his defense that he believed in it and therefore lacked fraudulent or corrupt intent. As former Attorney General Barr testified before the committee, “he’s cut himself off from reality if he really believes in this stuff.” This “if” presents a key potential weakness in a case of conspiracy or obstruction – perhaps enough for a reasonable doubt.

The strongest possible criminal charges against Trump would therefore avoid having to prove that he knew the story of a stolen election was a lie. Last Thursday’s hearing demonstrated one way to achieve this. Trump’s misconception of the election, whether he believed it or not, had nothing to do with his duty to try to stop the violence on Capitol Hill. Regardless of his role as CEO and commander-in-chief, Trump knew his armed supporters were marauding, assaulting and even seeking to kill in his name. The instructions he gave them placed the armed mob in the Capitol and put the people inside the building in danger. It gave Trump a legal obligation, as the person responsible for creating physical danger to Capitol residents, to help arrest his supporters once he saw they had turned violent. It is indisputable that he did nothing to stop them for over three hours and, instead, spurred them on with his angry tweets about Pence. Potential charges could then include assault and homicide.

The legal risk inherent in having knowledge of the violence and not acting to stop it is apparently even understood by Melania Trump and her attorneys, judging by an official statement she released last Thursday. on its own letterhead. She claimed she was unaware of the violence at the Capitol on January 6, as she was busy fulfilling her duty as First Lady to “record the contents of the historic rooms of the White House, including taking photographs archive of all renovations”. Indeed, she dismissed the ‘dereliction of duty’ charge against her chief of staff, Stephanie Grisham, for allegedly failing to brief her on events at the time. Grisham, however, claims to have posted a text message exchange earlier, presumably from January 6, in which she asked if the First Lady wanted to tweet that “there is no room for anarchy and violence”. and received the simple answer “No”.

Donald Trump, during his presidential campaign, said: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose a voter.” He added: “It’s, like, amazing.” Maybe he was right about that, but the shooting still would have led to a regular criminal charge. Last week, Attorney General Merrick Garland said: “There is nothing in the principles of prosecution or any other factor that prevents us from investigating anyone – anyone – who is criminally responsible for an attempted cancellation of democratic elections. Trump’s actions in trying to nullify the presidential election he lost were extraordinary. But last Thursday’s hearing revealed how the mere fact of Trump’s inaction exposed him to liability under basic principles of criminal law for more ordinary torts, such as destruction of property and assault with a deadly weapon – crimes for which hundreds of his supporters have already been charged or convicted. ♦

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