On Monday the House Select Committee investigating January 6th will almost certainly refer former President Trump to the DOJ, urging the Department prosecute Trump for specified crimes. This evaluation will focus on one such potential referral by the J6 Committee, that of insurrection
The Insurrection Statute: 18 U.S.C. § 2383
The rather short statute reads in full:
“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, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Were The Events Of January 6th An Insurreciton?
First, the DOJ would have to accept that the assault on the Capitol was an insurrection. That could be problematical. The DOJ has levied many charges, to include sedition, but as of yet has not charged anyone with insurrection.
On the other hand, as I have previously discussed, after a lengthy analysis, a state court actually removed from office “Cowboys For Trump” leader Couy Griffin under Section 3 of the 14 Amendment for having engaged in an insurrection on January 6th. The court directly concluded that the events of that day were an insurrection. The court noted that, “bipartisan majorities of both Chambers of Congress, more than a dozen Federal courts, President Biden, and the Department of Justice under former President Trump” all characterized the events of January 6th as an insurrection.
In terms of cases, consider United States v. Munchel. The United States Court of Appeals for the District of Columbia (where trial for insurrection against Trump would likely be held) three times referred to the events of January 6th as an insurrection. In United States v. DeGraves the court directly referred to those who assaulted the Capitol as “insurrectionists” and the events of that day as an insurrection. Some examples:
“Mr. DeGrave, along with Mr. Sandlin and several other insurrectionists . . .”
“Mr. DeGrave deleted dozens of messages related to the insurrection.”
“the two were together for much of the Capitol insurrection.”
The DOJ itself has argued in briefs that it was an insurrection. Consider the Brief in Support of Pretrial Detention of “Horns Guy” Jacob Chansley:
“Chansley is an active participant in — and has made himself the most prominent symbol of — a violent insurrection that attempted to overthrow the United States Government on January 6, 2021.”
The judge approved that motion.
If the DOJ chooses to, for the first time, charge Trump with insurrection for the events of January 6th it will have a rich array of authority to support the claim that an insurrection happened.
Did Trump Participate In The Insurrection?
Accepting that J6 was an insurrection is not sufficient. It must be further established that Trump did at least one of the following.
- incited the insurrection
- set on foot for the insurrection
- assisted the insurrection
- engaged in the insurrection
- gave aid or comfort to the insurrection
I think we can eliminate “set on foot” and “engaged.” Trump did not march to the Capitol and he did not participate in the violence. However, we can still consider whether Trump incited, assisted, or gave aid or comfort to the insurrection. Arguments that he did all of these are strong. Cumulatively, the facts weave together, supporting that his participation was real and meets the legal standard.
Incitement
As for incitement it starts with Trump being repeatedly asked if he would commit to a peaceful transition of power. Trump directly refused to do so suggesting there would be a peaceful transition of power only if the transition was to him.
Incitement is also found in Trump calling them there, specifying that very day and place, when the electoral college was to be certified by Congress. He did so without any suggestion or concern for peace. Rather he specified that it would be “wild.”
The combined weight of those messages to organizations already predisposed to violence and insurrectionist rhetoric was strong. One such organization was the Proud Boys who Trump had previously told “stand by” in the event he lost the election. They interpreted those combined messages as a license to wage war against the United States, and as a jury will start considering this coming week, from those words they initiated a seditious conspiracy against this nation. Prosecutors will show the jury that the Proud Boys heard the then President’s words, viewed them as a call to action, and used Trump’s words to recruit new members for their seditionist cause. Another jury, just a couple of weeks ago, found that leaders of the Oath Keepers, motivated by Trump’s words, engaged in a seditious conspiracy against this nation.
Potential witnesses for incitement could abound. Scores of individuals charged with the assault on our Capitol have pled for mercy in court on grounds that they believed they were just doing what their President wanted them to do.
In the Couy Griffin case, cited above, the court found that engaging in an insurrection includes “the surrounding planning, mobilization and incitement.” The elements of incitement and mobilization are certainly indicated in the facts presented above.
The Trump case against incitement will likely hinge on his single statement, in an otherwise inflammatory speech urging that they “fight,” at the Ellipse on January 6 where he suggested his followers march peacefully on the Capitol. Does that one, passing, CYA comment outweigh all the other stuff?
Assisted the insurrection
The statute does not require that Trump incite the insurrection if he assisted it. As a starting point all the evidence above that Trump incited the insurrection could also be regarded as assisting it. Added to that would be two key points suggesting Trump assisted the insurrection.
- Trump did nothing to stop it. For hours he assisted the insurrection by doing nothing. The Commander in Chief ignored his Constitutional duties and sat and watched it all on TV as his allies and even his family urged him to do something. When the Kevin McCarthy, the minority leader of the House, called begging the President to help Trump said, “Well, Kevin, I guess these people are more upset about the election than you are.” That response, denying McCarthy’s plea for help, assisted the insurrection. Trump had a veritable alphabet soup of law enforcement agencies to mobilize to help. He did nothing. He had the singular authority to call forth the national guard. He did not. He made some tepid tweets suggesting his followers respect police but he did not call for the rioters to leave or condemn them. Donald Trump assisted the insurrection by, as President of the United States, doing nothing to stop it.
- Trump egged on the insurrection. After he knew the violence had started, Trump encouraged it with a tweet strongly endorsing the cause of those attacking the Capitol and urging them to target his own Vice President.
The insurrectionist mob responded. The above tweet was read aloud through bullhorns to those violently assaulting the Capitol. They marched through the Capitol chanting “hang Mike Pence.” They built a gallows for their murderous purpose.
On TV Trump saw that image, and did nothing to undo the threat against Vice President Pence that he created.
Aid And Comfort To The Insurrection
Everything discussed above involves Trump giving aid and comfort to the insurrection. But, once again, there is more to offer. The very night of the violent attack on the Capitol Trump comforted it and aided it by tweeting support for their cause, suggesting Congress deserved what it got, while calling the cop beaters “great patriots.”
To this day Trump continues to give aid and comfort to those charged, and even convicted, for the events of that day suggesting that if made President again he would pardon them.
A federal judge has already concluded that it has been plausibly alleged that Trump aided and abetted in the beatings of Capitol Police Officers on January 6th.
Sedition vs. Insurrection
Some may ask whether a charge of sedition against the former President might fit better than insurrection. The irony is that the reverse is true. The sedition statute at 18 U.S.C. § 2384 is, by its nature, a conspiracy to overthrow the government or hinder the execution of the nation’s law by violence or force.
A conspiracy obviously requires coconspirators with which the charged conspirator planned this violence. This effectively means Trump would have had to engage in a back and forth dialogue with his coconspirators to plan the events of January 6th. While Trump certainly communicated generally to those who eventually assaulted the Capitol, and they viewed it as encouragement to for what they did, there is no real evidence they communicated back to Trump to forge a mutual plan.
However, while conspiracy requires a back forth dialogue, one can incite or give aid and comfort by one way communication. One can assist others without any communication at all. Insurrection does not require a mutually agreed upon plan and arguably fits better than sedition for that reason.
Conclusion
In the case of Couy Griffin discussed above the court concluded that he engaged in the January 6 insurrection even though he did not participate in any of the violence. The court found that engaging in an insurrection includes “the surrounding planning, mobilization and incitement,” of the insurrection. Actual violence is not required, so long as there is “intimidation by numbers” in a manner calculated to prevent the execution of federal laws. That court found that:
“One need not personally commit acts of violence to engage in an insurrection…Engagement…can include non-violent overt acts or words in furtherance of the insurrection” as “there are lots of roles in an insurrection, some of which do not involve violence.”
The question is whether Donald Trump played in one of those many roles that can be part of an insurrection. I think the case is strong that he did. Trump’s role was arguably larger, because of his much greater influence, than that of Couy Griffin.
The maximum statutory penalty for insurrection is ten years, and disqualification from holding any office in the United States.
