Trump
can and must be prosecuted
Opinion by
Columnist
Jan. 8, 2021 at 11:00 a.m. CST
Wednesday’s attack on
the Capitol so stunned the country that we run the risk of not fully processing
the unique violation of law that it represents. Imagine not considering whether
we should prosecute Islamist terrorists or the Oklahoma bombing terrorists or a
mass shooting in a parking lot. The same urgency we would apply in those cases
should be applied in holding everyone involved in the attack on the Capitol
legally responsible. That includes not only the participants but also all
others who incited it.
Not only did the
mob’s attack result in deadly violence, it also sought to overthrow our
democracy. It was in every sense of the word sedition, as
defined in federal law:
If two or more
persons in any State or Territory, or in any place subject to the jurisdiction
of the United States, conspire to overthrow, put down, or to destroy by force
the Government of the United States, or to levy war against them, or to oppose
by force the authority thereof, or by force to prevent, hinder, or delay the
execution of any law of the United States, or by force to seize, take, or
possess any property of the United States contrary to the authority thereof,
they shall each be fined under this title or imprisoned not more than twenty
years, or both.
Once we understand
the gravity and uniqueness of the case, we can fully appreciate that not only
the direct participants but also those who funded, organized and incited them
must be dealt with. If there was a conspiracy (in laymen’s terms, an overt
agreement to storm the Capitol), then all members of that conspiracy remain
liable for the crimes that ensued.
President Trump, for
his part, might try to pardon himself, but there is no such thing. Pardons come
from the tradition of the sovereign extending clemency to others.
Monarchs and their
representatives (e.g., royal governors) were immune from prosecution, so the
idea of self-pardon was nonsensical. When the Founders adopted the pardon power
(“The President ... shall have power to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment”), they used the
language as known at the time. “Pardon” was then, and remains, a transitive
verb — not a reflexive one. Frank O. Bowman III writes for Just Security:
The Oxford English
Dictionary explains that the English word “pardon” as both a noun and a verb is
a borrowing from the French language and derives from two Latin roots: per,
meaning “by,” and donum, a gift, or dōnāre, meaning to make a donation or gift.
Thus, a pardon is a
type of gift, and to pardon is to give such a gift. The act of gift-giving
requires both a giver and a recipient. Although we sometimes loosely speak of
giving ourselves a gift, in the sense of permitting ourselves an indulgence of
some sort, the ordinary sense of the word gift, and thus of the act of pardon,
requires two parties.
Had “self-pardon”
been intended, the Founders would have provided the presidency with a “get out
of jail for life” card, a preposterous notion that contradicts the fundamental
decision to abandon a monarchy in favor of a president with limited powers.
Given that Trump
cannot pardon himself, he has two choices: Resign and hope that Vice President
Pence, whom he has been vilifying all week, pardons him, or potentially face
the music at 12:01 p.m. on Jan. 20.
The possible offenses
— conspiracy to commit sedition, incitement to riot (resulting in death) — are
so grave and unique as to obviate any concern about a “political” prosecution.
We should not prosecute him for any action prior to the election, although
facts relevant to prosecution (e.g., a pattern of inciting violence, messaging
to his violent supporters) would be highly relevant.
Remember, Trump would
have a variety of defenses. He might claim he had no idea the group would act
violently, although his delay in calling them to go home suggests he
countenanced the carnage for some time. The First Amendment does not allow one
to be prosecuted for ideas, but the proximity to the Capitol, the direction to
march there and his statement that "If you don’t fight
like hell, you’re not going to have a country anymore,” all work against him.
While not speaking to
criminal offenses, former attorney general William P. Barr aptly explained,
“Orchestrating a mob to pressure Congress is inexcusable.” The word
“orchestrating” is a perfect description not only of the immediate incitement
but also of a potential conspiracy. Recall that Trump had been calling for his
followers to come to Washington. On Dec. 20, he tweeted, "Statistically impossible to have
lost the 2020 Election. Big protest in DC on January 6th. Be there, will be
wild!”
As an aside, remember
that in the case of a conspiracy, one is responsible for all the actions that
flow from that conspiracy. As a Congressional Research Service report explains, “The liability of
individual conspirators continues on from the time they joined the plot until
it ends or until they withdraw. The want of an individual’s continued active
participation is no defense as long as the underlying conspiracy lives and he
has not withdrawn.” Since pipe bombs were found, for example, all conspirators
might face an explosives charge.
No president has done
anything remotely like what Trump did, so his prosecution would not run the
risk of criminalizing ordinary political activity or even highly unacceptable
behavior (such as obstruction of justice, as the Mueller investigation had
found). As we come to grasp the enormity of Wednesday’s political and criminal
offense, the notion of letting Trump “walk” can rightfully be seen as
preposterous.
