If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Trump explicitly encouraged his fans at yesterday’s rally to “walk down to the Capitol” as Congress was meeting. “We are going to cheer on our brave senators and congressmen and women and we are probably not going to be cheering so much for some of them,” he went on to say, adding, “you will never take back our country with weakness.” He’s also been accused of declining to send the National Guard to intervene after the attack began, which smells like an act in furtherance of the conspiracy to me.
White House officials were shaken by Trump's reaction to a mob of his supporters descending on the Capitol today. He was described to me as borderline enthusiastic because it meant the certification was being derailed. It has genuinely freaked people out.
— Kaitlan Collins (@kaitlancollins) January 7, 2021
NEW: Trump initially rebuffed and resisted requests to mobilize the National Guard, according to a person with knowledge of the vents. It required intervention from White House officials to get it done, according to the person with knowledge of the events.
— Maggie Haberman (@maggieNYT) January 7, 2021
It’d be very hard to convict someone of sedition in light of First Amendment jurisprudence. So how about this instead? 18 U.S. Code § 373 – Solicitation to commit a crime of violence:
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.
Incitement is also a high bar thanks to the First Amendment, requiring evidence that the speaker intended to incite violence that was both imminent and likely. The “imminent” and “likely” part seem obvious enough in hindsight. All the DOJ would need to show is that Trump intended for his fans to get rough. I wouldn’t bet every dollar I own that they could prove it, but I wouldn’t bet much that they couldn’t either.
—>> Acting US Atty Michael Sherwin said they are looking at all actors involved in unrest at US Capitol, including the role President Trump played in inciting the crowd. “If the evidence fits the elements of the crime, they’re going to be charged,” he said.
— Jim Sciutto (@jimsciutto) January 7, 2021
All of that is an exciting prelude to this Times scoop that Trump is indeed thinking of going where no president has gone before with pardons, in case there was any doubt that he would. He craves impunity in everything he does and possesses a power by which he can bestow it on himself, at least in theory. There’s less suspense over whether he’ll pardon himself than whether Biden’s DOJ will test that pardon by prosecuting him for something — and where SCOTUS will ultimately come down.
President Trump has suggested to aides he wants to pardon himself in the final days of his presidency, according to two people with knowledge of the discussions, a move that would mark one of the most extraordinary and untested uses of presidential power in American history.
In several conversations since Election Day, Mr. Trump has told advisers that he is considering giving himself a pardon and, in other instances, asked whether he should and what the impact would be on him legally and politically, according to the two people. It was not clear whether he has broached the topic since he incited his supporters on Wednesday to storm the Capitol in a mob attack…
As aides urged Mr. Trump to issue a strong condemnation on Wednesday and he rejected that advice, the White House counsel, Pat A. Cipollone, warned Mr. Trump that he could face legal exposure for the riot given that he had urged his supporters to march to the Capitol and “fight” beforehand, according to people briefed on the discussion. Mr. Trump had appeared to White House aides to be enjoying watching the scenes play out on television.
That’s not all Cipollone said yesterday if you believe Vanity Fair. “[A] West Wing staffer told the friend that White House Counsel Pat Cipollone was urging White House officials not to speak to Trump or enable his coup attempt in any way, so they could reduce the chance they could be prosecuted for treason under the Sedition Act,” Gabriel Sherman reports. “’They’re being told to stay away from Trump,’ the friend said.”
They’re being told to stay away from their boss, the president, for fear that he might rope them into abetting a major felony at any moment or at least make them key witnesses in a future trial. Three months ago the only thing you had to worry about when you were around Trump was getting COVID. Now you have to worry about federal sedition charges.
I used to think a self-pardon would be the most disgraceful use he could conceivably make of the pardon power on his way out the door. But maybe not:
Latest: Federal prosecutors have charged 15 criminal cases stemming from the unrest at Capitol. Acting U.S. Atty Michael Sherwin said “most of those cases” relate to unauthorized entry - they were also charging cases involving firearms and theft of property. https://t.co/dbgNG4krne
— Jim Sciutto (@jimsciutto) January 7, 2021
Fox News notes that some of the degenerates who ransacked the Capitol could face stiff 10-year prison sentences thanks to the policy Trump instituted this past summer after woke leftists took to defacing public monuments. He signed an executive order directing the DOJ to prosecute suspects who damage government property to the fullest extent of the law, which in this case could mean a decade in the slammer. There are already calls on social media from alt-right droogs for him to preemptively pardon those who’ve been arrested and of course there’s no reason to think any sense of decency will prevent him from doing so. So we’re forced to contemplate strategies like this:
If feasible, law enforcement should hold off on making any arrests of rioters until Trump is out of office so he can’t pardon them. Do the investigation, ID them, locate them, etc., and then wait.
— Philip Klein (@philipaklein) January 7, 2021
We can’t trust the president, who’s charged with protecting the country, from handing out get-out-of-jail-free cards to cretins who attacked the Capitol because they did it while wearing MAGA hats so maybe we should hold off on charging them until January 20. There’s no better argument for impeaching and removing him tonight, before he can hand out any pardons to them or himself, than that.
But here’s what I’m thinking. Given that the 25th Amendment option to remove him probably isn’t happening, and given that McConnell may not have the votes to remove him in the Senate with less than two weeks left in his term, maybe the surest way to induce him to leave early is for Biden and AG nominee Merrick Garland to offer him a deal: If he resigns and goes away, he’s immune from future federal prosecution. I’m debating with myself over whether I’d support that deal, as it’s a moral travesty to let him walk away without consequences after what he’s done. But the hard truth is that Biden’s DOJ probably won’t prosecute him for anything anyway; the impetus to move on and “heal” will be too great. Meanwhile, it’s urgent to get him out of office as quickly as possible, before he does something even nuttier and more dangerous than yesterday. So make him a deal. If he quits now, the Biden DOJ leaves him alone. But that deal should only be considered if McConnell really doesn’t have the votes to remove. If he does, move forward in Congress and take care of business.