The possible Trump crime that has gone largely undiscussed — until now

The next Jan. 6 committee hearing — a prime-time finale after seven previous hearings — is expected to focus even more intently on what was happening inside the White House during the insurrection. I will be listening for evidence of a crime that has gone largely undiscussed: manslaughter.

Five people died in the Jan. 6 attack. Officer Brian Sicknick sustained a fatal stroke a day after rioters sprayed him with a chemical irritant. Air Force veteran Ashli Babbitt was shot by police when she tried to climb through a window and enter the House chamber. A Georgia woman, Rosanne Boyland, was crushed by fellow rioters as they pushed their way against the police outside a Capitol door. Kevin Greeson, an Alabama man, died of a heart attack in a sea of Trump supporters on the sidewalk west of the building. Benjamin Philips of Pennsylvania died of a stroke during the assault on the Capitol.

The loss of life was predictable in light of the size of the mob, their emotional state and their use of force.

The loss of life was predictable in light of the size of the mob, their emotional state and their use of force. We recently learned from Cassidy Hutchinson’s testimony another key fact — then-President Donald Trump knew that the crowd was armed, adding to the risk that someone would be killed. According to Hutchinson, this risk was also foreseeable to White House counsel Pat Cipollone, who urged White House chief of staff Mark Meadows to persuade Trump to take action to stop it. According to Hutchinson, Cipollone told Meadows: “Something needs to be done or people are going to die and the blood’s going to be on your f—ing hands. This is getting out of control.”

Under federal law, involuntary manslaughter occurs when a person commits an act on federal property without due care that it might produce death. To establish a criminal case of manslaughter against Trump, prosecutors would need to prove each of the elements of that offense beyond a reasonable doubt: an act, committed without due care, that caused death.

First, did Trump commit an act that could constitute the actus reus for manslaughter? His statements at the Ellipse in which he urged the crowd to march to the Capitol could be an act that constitutes this element. Recent evidence that this was not a “metaphorical” statement, but rather a coordinated plan, would make the statement even more egregious because it would mean that Trump had time to reflect on the potential deadly consequences of his actions.

July 8, 202211:00

But First Amendment concerns about political speech could create sticky legal issues. So instead, prosecutors could focus on acts of criminal omission.

Unlike most members of the public who have no duty to take action to prevent a crime, a president has a constitutional duty to “take care that the laws be faithfully executed.” The president also serves as commander in chief of the armed forces. On Jan. 6, when Trump was alerted that the situation at the Capitol was getting “out of control,” he had a duty to call in the National Guard to quell the violence. According to Joint Chiefs of Staff Chairman Gen. Mark Milley, Trump did not do so. Nor did he call any other government agency to intervene.

On Tuesday, we heard testimony from Cipollone that Trump could have gone to the press briefing room and made a statement on camera asking the mob to disperse, and that Trump refused. Trump also had a direct communication channel in the form of Twitter, but instead of posting a tweet asking the crowd to go home, Trump rekindled the flames by tweeting that Pence lacked the “courage” to toss out the election results. It was not until the 187th minute of the riot that Trump put out a video-recorded statement asking the mob to go home. I believe his three hours of inaction could amount to an omission necessary to prove that first element of manslaughter.

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Second, prosecutors would need to show the required mental state — that Trump acted without due care, which is another term for negligence. For criminal liability, prosecutors must show not just simple negligence, but gross negligence, an extreme deviation from the standard of care. Here, Trump certainly was aware, or should have been aware, of the risk of death at the Capitol. And yet he failed to take action. Testimony from staffers who urged him to act will be important at the upcoming hearing, especially for establishing a failure to take due care.

Third, prosecutors would need to prove that his act of omission caused one or more of the deaths. To prove causation, prosecutors must generally prove that the death was a reasonably foreseeable result of the act of omission. Here, it was reasonably foreseeable that a mob of thousands of angry people, whom Trump knew were armed and angry, would cause the death of another person. Even if Trump was unaware that the mob would breach the Capitol, it was reasonable to foresee that an overmatched Capitol Police officer or a member of the crowd would be killed. And of course, that is just what happened.

Even if this result was not foreseeable during Trump’s speech on the Ellipse, it certainly became foreseeable during the 187 minutes that he sat watching television coverage of the mayhem at the Capitol. And even if it cannot be established that Trump caused all five deaths, such as those resulting from medical emergencies, it seems clear that he caused at least some of them.

Even if this result was not foreseeable during Trump’s speech on the Ellipse, it certainly became foreseeable during the 187 minutes that he sat watching television coverage of the mayhem.

Under DOJ’s Principles of Federal Prosecution, prosecutors should generally charge the most serious, readily provable offense. Arguably crimes involving the loss of life are the most serious, readily provable offenses that occurred on Jan. 6. But one could also argue that crimes designed to undermine our democracy are also serious offenses. Charging one crime does not preclude charging another, and indictments may include multiple counts. Here, charging manslaughter would not prevent DOJ from also charging Trump with other serious crimes. If sufficient evidence can be assembled to prove conspiracy to defraud the United States, conspiracy to obstruct an official proceeding or seditious conspiracy, those charges can and should be filed as well to encompass the full scope of his apparent misconduct.

Donald Trump once said he could “stand in the middle Fifth Avenue and shoot somebody” and not lose any voters. Can he also cause the deaths of five people and not lose his liberty?