Trump is bragging on Truth Social that the Committee might have proven dereliction of duty but cannot prove seditious conspiracy. Yes. He is. But he is wrong, and so is the reasoning upon which he’s relying.
Yesterday, this site ran a story that emphasized the House Select Committee’s critical and seemingly subtle choice of words in presenting its evidence.
Everyone had heard that the Committee would focus on Trump’s “dereliction of duty,” which generally conjures up inaction in the face of an assigned duty to act. But dereliction of duty is only a crime in the military. Civilians can be charged with neglect of a child, but there are few civilian crimes of “inaction.” The president, even as Commander in Chief, is a civilian citizen.
For that precise reason, the Committee’s Rep. Adam Kinzinger opened the hearing by stating that Trump didn’t “fail” to act. No, Kinzinger said that Trump chose not to act. We noted at the time that the difference was absolutely critical.
Donald Trump also believes it is critical because he’s posting about the issue today, taking a lap, thinking he won a victory. This is an ex-president bragging that the Committee cannot charge him with dereliction of duty, only Trump…
“…That’s not a legal judgment unless you’re in the military. The president is not in the military. He is the commander-in-chief. He’s a civilian. And that law, only a federal law, only applies to people who are in the rank and file of the military…That case wasn’t made…They didn’t close the case tonight. There wasn’t seditious conspiracy.” John Dean
This attorney is quite happy to disagree with John Dean and feels comfortable in so doing because, again, this site pointed out that the Committee attorneys (and members) are far too smart to make a mistake like characterizing Trump’s January 6th day as one of “inaction.” To repeat, in the first minutes of the hearing, Kinzinger said that Trump made an affirmative “choice” to resist all people begging him to act. When one is forced to make a decision, act or not act, specifically choosing to do nothing because it helps the insurrectionists is an “act” in furtherance of the crime.
It is a subtle but critical distinction. To commit conspiracy, one must agree to commit a crime with others, and one must take one affirmative act that furthers the crime. Trump’s choices were affirmative acts, and that’s precisely why the Committee attorneys had the members characterize Trump’s activities as “choices,” and not “inaction.”
There were two “choices” that most strongly suffice as an action taken to help the insurrectionists. First, the Committee went through the fact that Trump knew that the United States Capitol was breached within 15 minutes of the end of his speech. Trump knew it while still wearing his coat in the Oval Office. At that point, Trump made a choice. He chose to keep himself in the dark as to the facts and what others might do to respond by not placing one phone call to any law enforcement agency, the military, or the Capitol. Most damningly, the Pentagon itself called Trump wanting Trump’s help, and Trump chose to refuse to take the call. Trump had Pat Cipollone take the call. When the United States Capitol is under attack and the Pentagon calls, the decision to not take the call and have Cipollone answer is an affirmative act to help the insurrectionists.
The second action is even more obvious. Trump tweeted out that Mike Pence failed them at one of the most critical points, knowing that it would serve to infuriate and create an even more violent situation.
Additionally, the Committee has plenty of evidence to close its conspiracy case. After all, Trump knew that the crowd was armed, angry, and dangerous, and he sent them right up to the Capitol. That sounds like a step in furtherance of a conspiracy to me.
The fact that Trump sat stone silent watching it on television, refusing to do anything at all, almost sounds like a legal calculation made ahead of time. Trump likely heard from an attorney or believed himself that so long as he did nothing, he couldn’t be implicated in the attack. He did do things, he made choices.
But leave it to Trump to brag that “dereliction of duty” isn’t a crime, and one person doesn’t believe that the President of the United States committed seditious conspiracy… that it is even a question as applied to a president is breathtaking. That Trump believes he’s fine, is… normal.
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