Legal think tank “Just Security” has published a “model prosecution memo” (or “pros memo” in the biz) urging that Trump be charged with engaging in, aiding or comforting an insurrection. A pros memo is typically prepared by federal prosecutors to evaluate whether a potential case meets DOJ standards for bringing an indictment. Those standards amount to there being sufficient admissible evidence to secure a conviction at trial.
A team of former prosecutors at Just Security drafted this model memo (available HERE) in anticipation of expected grand jury indictments this Summer related to January 6th. Just Security predicts these indictments will come down before Fani Willis releases her indictments in what is expected to be less than a month. The reason is so Smith can make “his theory of the case public, minimizing the risk of a conflicting Fulton County indictment that could complicate the federal case.”
The memo suggests three sets of major charges against Trump.
1. Conspiracy to defraud the United States, violation of 18 U.S.C. § 371 and causing the submission of false statements, in violation of 18 U.S.C. § 1001. This would be for the scheme leading to the creation and submission of false electoral college slates. A conspiracy to defraud the United States does not require anything financial. Its expansive definition applies to anything that would impair the legitimate functions of government. Almost two years ago, I wrote how this statute could be used against Trump for a January 6 related prosecution. The Just Security memo follows much of the same reasoning. The memo suggests a wide number of Republican officials who could be named as coconspirators. However, in the interests of keeping the case simple for the public, and the jury, it urges most strongly for Trump Chief of Staff Mark Meadows and Trump attorneys Rudy Giuliani, John Eastman and Kenneth Chesebro.
2. Corruptly obstructing or impeding, or attempting to obstruct or impede, an official proceeding, in violation of 18 U.S.C. § 1512(c)(2) and § 1512(k). This builds upon the false electoral college slates and applies to the corrupt efforts to persuade Vice President Pence to use those slates as an excuse to throw out contested electoral college votes and throw the election into the House. As I did over a year ago, Just Security points out that a judge has already determined that Trump’s and Eastman’s effort to sway Pence in this regard likely violated § 1512.
3. Engaging in, aiding or giving comfort to (and perhaps inciting) an insurrection in violation of 18 U.S.C. § 2383. It is this one I shall discuss in more detail below.
I was, and remain, skeptical of any charge against Trump for insurrection when no one else has been charged with insurrection, even those who violently assaulted the Capitol. In fact, there have been no prosecutions under this statute since the Civil War. Just Security acknowledges that none of the J6 rioters have been charged with insurrection but argues many have been charged, and convicted, for the related charge of sedition under § 2384.
Still, that’s not the same, and making Trump the first person criminally charged with insurrection in for January 6th would seem to play into the hands of those who accuse the DOJ of being weaponized against Trump. Still, let’s take a look at Just Security’s argument because they do a good job of rebutting some of the defenses against this you may have heard from Trump supporters.
It Was An Insurrection
Obviously a key element is establishing that what happened on J6 was an insurrection for Trump to incite, engage in, or comfort. “Insurrection” is not defined in § 2383 but Just Security goes back to the Civil War (and even before) to cite precedent that it is “an assemblage of persons [acting] in force, to overthrow the government, or to coerce its conduct.” That last part, “to coerce its conduct” is key. Arguably the J6 rioters, and Trump in particular, were not trying to overthrow throw government, but rather coerce Congress to throw out the election results.
A favorite MAGA argument is that it couldn’t have been an insurrection because few were armed with guns. This ignores that some were, and many were armed with other things. However, Just Security cites many precedents establishing that an insurrection requires no weapons at all, that mob intimidation is sufficient. “The sheer number of people may, itself, be the instrument of intimidation used to oppose the authority and the laws of the United States . . . military weapons (as guns and swords…) are not necessary to make such insurrection…because numbers may supply the want of military weapons, and other instruments may effect the intended mischief.” Citing Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800).
Consider the following from a grand jury charge in 1894:
It is not necessary that there should be bloodshed; it is not necessary that its dimensions should be so portentous as to insure probable success, to constitute an insurrection. It is necessary, however, that the rising should be in opposition to the execution of the laws of the United States, and should be so formidable as for the time being to defy the authority of the United States.
Notably, the mob was more than sufficient to, “for a time,” block the execution of the laws of the United States by forcing Congress to flee the Capitol and delay the electoral college vote.
Just Security, also cites the case of J6 participant Couy Griffin who was barred from public office in New Mexico under the U.S. Constitution’s 14th Amendment, Section 3 for participating in the January 6th insurrection. As I discussed, Griffin was so barred even though he did not enter the Capitol and did not himself in engage in violence.
Trump Engaged In, Aided, or Gave Comfort To The Insurrection.
The primary argument Trump engaged, aided, or gave comfort to the insurrection takes a very narrow approach in saying that he did so in two ways.
1. Sending the inflammatory tweet out in the middle of the violence stating that Pence is a coward.
2. Taking no action to stop the violence for over three hours even as staff, Republicans in Congress, and even his family pleaded with him to do so.
As a starting point, Just Security again cites numerous precedents for the notion that one can engage in, aid, or comfort an insurrection without participating in the violence. Rather, virtually any assistance advancing the insurrection is sufficient. Merely being “leagued with the insurrectionists” is sufficient. Citing the Couy Griffin case discussed above, Just Security argues:
“Non-violent overt acts or words in furtherance of the insurrection” are sufficient to demonstrate engagement. In an insurrection, “there are no accessories”; rather, “everybody…involved’ is a principal actor.
Just Security argues that Trump’s tweet about Pence, made in the midst of the violence, he knew was going on, threw gasoline on that fire. It certainly comforted those engaged in such violence, ratified their beliefs that their cause was just, and encouraged the mob to direct its violence against the Vice President of the United States. We have all seen the dramatic video of the mob chanting, “hang Mike Pence.” That chant started as news of Trump’s tweet spread through the mob.
Just Security argues that Trump aided or gave comfort to the insurrection by taking no action to stop it for 187 minutes after the violence started. Just Security acknowledges that it is rare for criminal liability to apply for not acting, but that it can when “there is a duty to act — a legal duty and not simply a moral duty.” United States v. Sabhnani, 599 F.3d 215, 237(2d Cir. 2010). Just security argues: “Trump had such a duty, in that he had a constitutional obligation to ‘preserve, protect, and defend the Constitution of the United States,’ a duty that extended to defending the Capitol when it was attacked.”
It was duty amplified by Trump’s own role in setting up the events leading to that attack. His tweets summoning the mob there, on that day, to be “wild.” His speech urging them to march on the Capitol, even though he knew many of them were armed, and repeatedly calling on them to “fight like Hell.”
Trump continued to comfort the insurrectionists with subsequent tweets praising them as “great patriots,” and basically saying these things happen when elections are stolen.
Incitement
Just Security argues less strongly for charging Trump with incitement, but describes it as a credible charge. The above described conduct is the basis. Many of the rioters have made clear that they acted as they did because they believed their President wanted them to. It’s notable that many rioters came prepared for violence, and armed in various ways, and that knowing this Trump still directed them to the Capitol.
In the coming weeks we shall see how closely Smith follows what Just Security suggested. I think the smart money is against a charge of insurrection. Feel free to disagree.
