Albert Alschuler Argues for Prosecuting Former President Trump for January 6 Events

The Easiest Case for the Prosecution: Trump’s Aiding and Abetting Unlawful Occupation of the Capitol

Knowing whether former President Trump’s conduct on Jan. 6 violated one or more criminal statutes is important for several reasons. First, the public should know whether Trump committed any crimes. Second, identifying potential crimes can shape what the House Select Committee investigates. Third, Trump’s potential criminality affects Congress’s ability to obtain information in the face of a claim of executive privilege. And finally, identifying likely crimes could determine whether the Justice Department pursues a criminal investigation and then prosecutes the former president.

Harvard Law Professor Laurence Tribe and former U.S. Attorneys Barbara McQuade and Joyce White Vance have presented “a roadmap for the Justice Department to follow in investigating” whether Trump’s efforts to overturn the 2020 presidential election were criminal. Acknowledging that the facts did not yet establish any crime beyond a reasonable doubt, they listed a half-dozen offenses they said merited investigation.

Jeffrey Toobin, CNN’s chief legal analyst, answered “not so fast.” Reviewing the offenses listed by Tribe, McQuade, and Vance, Toobin concluded, “[T]here is no basis to prosecute Trump and little reason even to open an investigation.”

Neither Tribe and his coauthors nor Toobin mentioned what may be the clearest case for prosecuting the former president. By violating his legal duty to do what he could to end the unlawful occupation of the Capitol, Trump became an accomplice to that crime. He is subject to the same punishment as the rioters who entered the building.

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