If Trump is charged, it should be for the worst of his crimes

‘Seditious conspiracy’ and ‘insurrection’ are more fitting charges than ‘interfering with an official proceeding’ or ‘defrauding the U.S.’

(Shane Cluskey for The Washington Post)

Prosecuting a former president of the United States is a tricky business. It’s not like prosecuting Al Capone, the notorious gangster who was charged with tax evasion rather than the more fitting charges of murder and racketeering. A technical charge such as tax evasion may be suitable for obtaining the conviction of a mobster, but hardly sufficient for an occupant of the Oval Office who tried to overthrow the U.S. government. Donald Trump has millions of supporters and the weight of precedent behind him. Of course Trump should face consequences for tax evasion if he merits it, but it is critical for public perception, for history — for the preservation of democracy — that if he is charged, it is first and foremost with the crimes that best reflect the gravity of the danger he posed to the country.

On Monday, the FBI searched Trump’s Mar-a-Lago home in Florida for any presidential records that may have been improperly removed from the White House. On Wednesday, Trump sat for a deposition in the New York attorney general’s office, which is conducting a civil investigation into his business practices. A federal indictment may or may not arise from these investigations, but it is Trump’s role in the attack on the U.S. Capitol on Jan. 6, 2021, that warrants the greatest scrutiny — and the gravest charges — from a Justice Department exercising its prosecutorial discretion under such historic circumstances.

The two most serious crimes for which Trump may stand accused, and which most clearly describe his conduct on Jan. 6 and in the weeks leading up to it, are insurrection and seditious conspiracy. If the facts and evidence support them, they are what Attorney General Merrick Garland should charge, whatever other charges he includes.

The significance of Jan. 6 shouldn’t be obscured by legalese before a public contending with the seduction of insurrectionist rhetoric. Charging Trump only with narrowly defined crimes could backfire, and Garland should resist, even if that’s what the House select committee investigating Jan. 6 ends up recommending. The vice chair of the committee, Rep. Liz Cheney (R-Wyo.), has hinted at a possible criminal referral to the Justice Department, both in hearings last month and in interviews during the course of the investigation, by highlighting two potential crimes: interfering with an official proceeding and defrauding the United States. A brief the committee filed in a legal dispute with Trump attorney John Eastman, who hatched the fake-electors scheme in the multipronged effort to overturn the election, also highlights these two offenses. Cheney has further suggested that the committee may include a referral on witness tampering, based on contact Trump had with those called to testify before the panel.

The committee may be tempted to stake out a moderate position regarding criminal charges in a misguided effort to garner public support and make the unprecedented prosecution of a former president more palatable, but the Justice Department must act independently in deciding what, or whether, to charge. To be sure, the DOJ should consider any evidence of criminality uncovered by the committee, but it should give no weight to the committee’s opinion in reaching its determination.

Restricting a federal prosecution to two rather obscure-sounding charges — and a possible third relating to the integrity of the process — would not only downplay the seriousness of Trump’s offenses but could also exacerbate the view that any such prosecution is politically motivated. After the Mar-a-Lago search, that perception took hold among Trump supporters, who accuse the FBI of acting on a technicality involving federal records, even though the bureau had a search warrant signed by a federal judge and based on a showing of probable cause that a crime had been committed. Violating the Presidential Records Act by removing or destroying government documents is not in itself in the same league as insurrection or seditious conspiracy; if, however, the records in question pertain to serious national security breaches — The Washington Post has reported that some of the documents relate to nuclear weapons — that might be a different matter.

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The crime of insurrection, 18 U.S. Code 2383, imposes criminal penalties on “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Trump’s words to his supporters — telling them to go to the Capitol and encouraging them by saying, “I’ll be right there with you” — incited and literally set on foot the insurrection that followed. He also assisted the insurrection by his inaction under circumstances in which he had a duty to act — namely by failing to call out the National Guard or order other reinforcements for the Capitol Police as the building was overtaken. Trump also encouraged the crowd’s bloodthirsty pursuit of Vice President Mike Pence, which he did by tweet even after he knew that the siege had turned violent and despite urgent pleas from his daughter Ivanka Trump and others for him to call off the attack. Although it is true that the purpose of this incitement may have been to interfere with an official proceeding, as Cheney suggests, this particular proceeding was the one certifying the election of the next president of the United States, the integrity of which is critical for the peaceful transition of power. Interfering with an official proceeding, therefore, could be only a small piece of what was wrong with Trump’s conduct that day. If testimony in the Jan. 6 hearings and reporting by The Post and others is any measure, Trump’s true purpose in interfering with the certification was to create conditions that would allow him to seize control of the government and remain in power.

The crime of seditious conspiracy differs from insurrection in that it requires a plan involving more than one individual, among other things. As defined in 18 U.S. Code 2384, seditious conspiracy is when two or more people “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.”

The Jan. 6 committee has provided powerful evidence of a comprehensive plan by Trump and some members of his inner circle to do just that. In a meeting at the White House on Dec. 18, 2020, among Trump, former Overstock chief executive Patrick Byrne, lawyer Sidney Powell and former national security adviser Michael Flynn, for example, serious consideration was given to the extraordinary step of ordering the military to seize voting machines to redo the election. Such an order at best would have posed a drastic national security crisis, throwing the chain of command into chaos as Pentagon officials debated the directive; at worst it would have brought the military into the plot to overthrow the government. Plots at this level are conceivable only as part of an extended conspiracy.

Seditious conspiracy is rarely charged, and prosecutors have been rightly cautious about unbottling a genie that could be used to quell protected speech or religious liberty. However, as with the seditious-conspiracy charges against Omar Abdel Rahman following the 1993 World Trade Center bombing, sometimes speech turns into an actual plan, and in such cases the First Amendment no longer applies. Jan. 6 is the type of case for which the seditious conspiracy charge was made.

At least until the surprise search at Mar-a-Lago, many commentators defended Garland’s seeming inaction with regard to the former president and his associates. Among other arguments, they suggested that seditious conspiracy would be particularly difficult to prosecute, given the need to prove intent. Yet was Trump’s intent on and before Jan. 6 really so hard to discern? Would it be more difficult to prove the requisite state of mind for Trump than to prove the intent of Stewart Rhodes, Thomas Caldwell or Joseph Hackett, all members of the Oath Keepers who participated in the insurrection and whose indictments on charges of seditious conspiracy are premised on a pattern of conduct not unlike Trump’s? Rhodes, Caldwell, Hackett and others have been accused of conspiring “to oppose the lawful transfer of presidential power by force, by preventing, hindering, or delaying by force the execution of the laws governing the transfer of power, including the Twelfth and Twentieth Amendments to the Constitution.” Didn’t Trump do the same? And with the same intent or purpose?

Indeed, Trump’s intent probably formed long before that of his fellow insurrectionists. For weeks he had pressured Pence to declare the 2020 election invalid by rejecting the vote count of the states’ certified electors. He repeated these demands in his speech at the Ellipse on Jan. 6 and again by tweet later that day. His intent was particularly clear when, according to White House aide Cassidy Hutchinson, who testified before the Jan. 6 committee, he demanded to be taken to the Capitol and even physically tried to get a member of his security detail to drive him there. Trump’s intent was also apparent when those breaching the Capitol called for the vice president, who was at that moment fleeing for his life, to be hanged; Trump’s chief of staff, Mark Meadows, said that Trump believed Pence deserved it, according to Hutchinson.

The only significant difference between members of the Oath Keepers and Trump is the means each chose to promote their goal — the former used stun guns, pepper spray, baseball bats and flagpoles; Trump used a Twitter account, a microphone and the power of his office.

Prosecuting Trump would set a risky precedent. Not prosecuting would be worse.

Focusing on the possible crimes of insurrection and seditious conspiracy is important for another reason. The post-Civil War drafters of the 14th Amendment identified the special danger posed by these crimes in Section 3 of that amendment, which provides that “no person shall [hold public office] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Although the 14th Amendment does not require a criminal conviction for insurrection or rebellion to disqualify a person from public office, such a conviction would bar Trump from holding office again. By contrast, conviction on the more banal charges of “interfering with an official proceeding” or “conspiracy to defraud the United States” would not prevent him from holding office — arguably even if he conducted his presidency from inside a federal prison.

The country fought a devastating Civil War to defend the Constitution and keep the Union together in the face of insurrectionists who believed they owed no duty to the laws of the United States. Now, as in 1861, we stand at a crossroads. While prosecuting a former president may seem fraught with peril, the road that abandons accountability for those who would attack democracy by force and violence is more perilous still. If we cannot hold the country’s leaders responsible for their most serious crimes, particularly those they commit to keep themselves in power, we cannot expect representative democracy to survive.