We are still dealing with the fall out from the January 6th attack on the Capitol when white supremacist extremists gathered at Trump’s bidding to protest Joe Biden’s presidential win.  It’s September 18th today and Trump supporters are back in Washington DC for a rally to protest insurrectionists being treated like the criminals they are. Even though many Republican lawmakers are keeping their distance from this rally, Trump continues to undermine our democracy by micromanaging who is in power at the local level and are part of a plan to overturn future elections if the “right” people don’t win.

Little by little we are learning the back story about how Trump tried for what is called a “self coup” on January 6th. Remember when Trump stood before the MAGA crowd at the Ellipse along with other Republicans and exhorted the crowd to take action.

“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” he said.

His defense lawyers, however, point to a different passage, in which Trump said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” 

Trump also told the crowd that day that the election had been stolen.  After hearing Trump and others at the Ellipse, the crowd went to the Capitol and attacked the Capitol Police and Metropolitan Police, broke into the House of Representatives and Senate building looking for Mike Pence with the intent to hang him, and tried to hunt down Nancy Pelosi and other lawmakers with the intent to harm them as well.  Five people died. It was remarkable there were not more people who lost their lives in the attack. In short, there was an insurrection to try to prevent the certification of Biden’s win and the insurrectionists damaged many lives as well as property. They were prevented from succeeding by the acts of heroic Capitol Police and DC Metro Police who were outnumbered and unsupported by back up troops until almost too late.

Did Trump Conspire to Defraud the US?

In the 1924 case Hammerschmidt v. United States, the Supreme Court of the United States, in an opinion authored by Chief Justice William Howard Taft, held that “To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”[3]

The U.S. Department of Justice‘s United States Attorneys’ Manual, summarizing case law on the statute, states that “In summary, those activities which courts have held defraud the United States under 18 U.S.C. § 371 affect the government in at least one of three ways: (1) They cheat the government out of money or property; (2) They interfere or obstruct legitimate Government activity; or (3) They make wrongful use of a governmental instrumentality.”[1] The “intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government.[1] The federal courts have held that an “actual loss to the government of any property or funds” is not an element of the offense; to secure a conviction, the government must prove “only that the defendant’s activities impeded or interfered with legitimate governmental functions.”[1]

Didn’t Trump’s exhortations to the MAGA mob set in motion an insurrection that impeded or interfered with the legitimate governmental function of certifying the results of the 2020 election? Even though the certification was completed later that day, the government was impeded in carrying out its function of certifying the election results and that’s what the statue requires. The MAGA mob did disrupt the functions of government that day. Were Trump’s exhortations to the crowd known to be false since he claimed the election was stolen and the crowd needed to stop the steal? You can make a good argument about that. Trump had been told the truth, he had factual knowledge of the actual results of the election at that point: Biden won and he lost. So wasn’t what he said to the crowd on January 6th knowingly false? You would think so, unless Trump wants to argue in his defense that he has dementia or is/was delusional, or so crazy that he does not know right from wrong, truth from lies. That might be a defense that would go to Trump’s mens rea or state of mind.

It’s interesting that the House committee investigating January 6th has requested a huge trove of documents targeting Trump and his children and their spouses (except Tiffany), everything possibly connected to Trump that would shed light on his knowledge and involvement. The committee has also demanded documents related to Trump’s mental state including anything that would indicate dementia or delusional thinking.

The committee goes as far as requesting all documents pertaining to “the mental stability” of Trump or “his fitness for office” in the days between the insurrection and when he left office on January 20. [CNN]

The big question will probably come down to whether Trump’s exhortations at the Ellipse incited the mob to do what it did. Trump’s lawyers would argue in his defense that he said two different things to the crowd- yes, he told the crowd to fight like hell but he never specifically told them to do what they ended up doing at the Capitol, and he also said they should be peaceful. He spoke out of both sides of his mouth. They would likely claim that Trump was totally surprised by what the mob did (whether that was true or not).  They will allege he was surprised and shocked.

Trump was well coached by Roy Cohn about how to couch his words to avoid criminal culpability: speak out of both sides of your mouth. As he often does, Trump said one thing (fight) and another (be nice) that could be used to keep him from getting into trouble by muddying his intent. By saying what he said, I think Trump consciously protected himself from a future criminal indictment when he spoke at the Ellipse on January 6th.

His lawyers will also argue that the bad actors were those Proud Boys and 3 Percenters and Oath Keepers. But Trump had nothing to do with them.  They planned an attack on their own. They had an insurrection on their own or maybe someone else met with them (spoiler alert: Roger Stone), but Trump’s hands were clean. Yeah. Right. Sure they are.

Unfortunately, to hold Trump accountable I think there will ultimately need to be a clear link or tie in to the Proud Boys, Three Percenters and/or Oath Keeper insurrectionists. And there would need to be evidence that these groups engaged in some level of planning, were highly active at the Capitol leading the mob and breaking and entering with the intent to attack members of Congress.  I doubt that evidence linking Trump to a conspiracy will be uncovered and it is hard to tell yet if there is even evidence of a planned effort (conspiracy) between these white supremacist groups. Those insurrectionists who are “flipping” will help us know the truth.

Well, How About Sedition Then?

According to the statutory definition of sedition, USC Section 2384, it is a crime for two or more people within the jurisdiction of the United States:

    • To conspire to overthrow or destroy by force the government of the United States or to level war against them;
    • To oppose by force the authority of the United States government; to prevent, hinder, or delay by force the execution of any law of the United States; or
    • To take, seize, or possess by force any property of the United States contrary to the authority thereof.

Free Speech, Sedition, and Treason

In order to get a conviction for seditious conspiracy, the government must prove that the defendant in fact conspired to use force. Simply advocating for the use of force is not the same thing and in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution “by any means necessary” have not necessarily conspired to overthrow the government. Rather, they’re just sharing their opinions, however unsavory. But actively planning such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy.

The likely outcome here with respect to the January 6th attack is that the Proud Boys, Oath Keepers and 3 Percenters who are currently being prosecuted for their actions leading up to and during the January 6th insurrection are the ones who might eventually be charged under this statute. There would need to be evidence that they organized, planned and actively worked to put together the attack that happened that day. Trump would likely skate. As usual. There would have to be evidence that Trump directly, actively worked with these guys. This is not likely.  Even if a Trump ally like Roger Stone was set in motion by Trump and conspired with the Proud Boys and Oath Keepers, that would not be enough to ensnare Trump himself.

OMG! What Else Could Be Done to Stop Trump From Doing This Again in 2024?

Remember that second impeachment of Trump? He was impeached by the House and not convicted in the Senate. But impeachment might be a remedy for a rogue president who is currently working on a future coup in his run for president in 2024.

What is Trump doing to game the system and regain the presidency? He is consciously using the Big Lie to set up his return to power. Republican led states are paving the way for a Trump return by changing their laws to permit election subversion and getting people who support the Big Lie elected to administrative roles and positions of power so that they have the authority to purge voter rolls, allege the election was fraudulent (whether there is evidence or not) and decertify the next election. Trump attacks people like Brad Raffensberger, the Georgia secretary of state who did not cave to the Big Lie to get him out of power. Trump supports people who do support the Big Lie so that they can win local elections and congressional seats.  Trump is clearly continuing the insurrection with this surreptitious take over of local election officials who will pave the way to his return to the presidency.

How About Another Impeachment?!

Impeachment is under the control of the House and conviction is under the control of the Senate. But punishment comes in two potential ways: 1)  an impeached president can be removed from office, 2) an impeached president who is also convicted can be disqualifed from running for public office again and lose his post presidential multimillion dollar benefits.

Trump was already impeached twice but not convicted. Because he was not convicted there was never a vote on the disqualification issue. But what if Trump were impeached a third time based on the findings of the House investigation that could tell us much more about his role on and before January 6th? This time it would be based on new evidence and the Big Lie that has resulted in a wave of anti democratic voting laws that would serve to usher him into power again in 2024.

Congress has the power to pursue this remedy even though Trump is out of office. The goal would be disqualification from holding future office. It would keep him from running again.  But, you say, can a former president really be impeached after he has left office?

Here is the answer:

Read as part of this more natural sequence, the removal language of Article II places no necessary restriction on the class of officials who may be impeached, convicted and penalized. Rather, it requires that the Senate remove an official upon conviction, allowing that body no discretion in the matter, but leaving disqualification—the other penalty already enumerated in Article I—as an additional, but discretionary, consequence. So conceived, the impeachment clauses present no barrier to impeaching, trying, convicting and then disqualifying an officer who committed “high crimes and misdemeanors” while in office but has since left office—whether by resignation or expiration of his term—at some point prior to the Senate’s determination of a proper penalty. For an officer who has vacated his or her post, removal may be moot, but disqualification remains available. [Lawfare]

The good news about disqualification is that it would take Trump out of the running for presidency which would please a whole lot of Republican senators who hate what Trump has done to their party but are afraid of him and the base. There is a way for the Dems to take the vote on disqualification without GOP Senators. The Constitution only requires that 2/3 of the Senators present vote to impeach. If Republicans can’t bring themselves to take a vote to impeach Trump a third time given all he has done, they should simply fail to show up for the vote. As long as there is a quorum Trump could be impeached a third time. After that it only takes a majority vote to disqualify.  Republicans could avoid taking the vote that would keep Trump from running again. And it would keep Trump from getting millions of taxpayer dollars in his post-presidential years as part of his post presidential benefits perks.

This might turn out to be the best way to keep Trump from trying to regain the presidency. He would still whine and complain that he was targeted by the deep state and he would be a martyr in the eyes of his cult base followers, but he would not be able to regain the presidency or any other elected office. And that would be an excellent outcome for our country.