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.
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