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A federal judge has in fact upheld a civil complaint alleging an implicit conspiracy between Trump and some January 6 rioters to hinder forcibly the performance of a federal official’s duties.īut why would the prosecutor bother? A charge of aiding the insurrection would be simpler, and this charge would be easier for a jury to understand. A prosecutor might attempt to portray Trump’s acts and omissions before and during the insurrection as manifesting his assent to a seditious conspiracy, one in which Proud Boys, Oath Keepers, and ultimately hundreds of others agreed implicitly with one another to use force. An agreement need not be verbal, and one can join a conspiracy after the crime to which she agrees is underway. The distinction between aiding and agreeing sometimes looks sharper on paper than it does in practice. Trump’s assistance to an ongoing insurrection would be easier to establish than his agreement to use force. This section considers the “actus rei” of insurrection and seditious conspiracy-the acts required for conviction. A final section notes gaps in the admissible evidence and suggests ways in which the Justice Department might fill them.
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It then examines the evidence that Trump intended the use of force or violence to oppose federal authority, showing that that this evidence became much stronger after the insurrection began than it was before the insurrection started. It briefly explains why assisting an insurrection is likely to be easier to prove than entering an agreement with others to oppose the authority of the United States by force. This article offers other reasons for preferring a prosecution for insurrection to one for seditious conspiracy. § 2383 includes “assist … any … insurrection against the authority of United States or the laws thereof, or giv aid or comfort thereto.” My earlier article explained why Trump’s dereliction of duty during the 187 minutes he refused to ask his supporters to end their violent occupation of the Capitol, his failure to mobilize federal forces to secure the building, and his active encouragement of the rioters by tweeting that “Mike Pence didn’t have the courage to do what should have been done” establish his guilt of this offense. Although the evidence that Trump committed this crime is much stronger than the evidence that he committed seditious conspiracy, this offense has gone nearly unmentioned in discussions of his potential criminality.
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In an earlier article, I noted that prosecuting and convicting Trump of another offense also would hold him responsible for this violence. Convicting Trump of that offense along with the Oath Keepers and Proud Boys already charged with this crime would hold him responsible for the violence of January 6 in a way that a conviction of fraud would not. That crime consists of an agreement to oppose by force the authority of the United States or to hinder the execution of federal law. One investigative grand jury is considering “potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim the election was rigged.” Another is focusing on “seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on January 6.” The first grand jury is looking at nonviolent efforts to block the transfer of power the second, at violent efforts.Ĭommentators have suggested that the Justice Department should focus particularly on whether former president Donald Trump committed seditious conspiracy. The Justice Department’s current investigation of criminal efforts to overturn the results of the 2020 presidential election apparently is taking two paths.
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