Trump should NOT be tried by the Senate for Inciting Insurrection
He should be tried in criminal court instead
On January 6, 2021, then-president Donald J. Trump addressed thousands of protestors at the Ellipse near the U.S. Capitol Building. In his speech, he unambiguously provoked the crowd to march to the Capitol and take action to prevent the formal certification of Joseph R. Biden as the newly elected president.
For months prior to this event, Trump had falsely claimed, repeatedly and without evidence, that the election was stolen from him through voter fraud, ignoring over 50 federal court cases ruling against this claim. He had invited his supporters to come to Washington that day specifically to “protest” the Congressional certification.
With the crowd gathered before him, Trump riled them up to a fury and told them to be bold and strong, and that if they didn’t take action beyond just protesting, they would lose their country to an illegitimate president. The mob, including members of numerous white supremacist groups, stormed the Capitol Building shouting slogans like “Stop the Steal” and “Hang Mike Pence.” Having breached the barricades, they broke through doors and windows, assaulted Capitol Police, invaded the Senate chambers and came within minutes of access to Senators who barely escaped to another building. The mob held the premises hostage for about three hours, eventually leaving with laptops and other trophies.
During the insurrection, authorities begged Trump to televise admonitions and demand his supporters to stop. However, in the safety of his quarters in the White House, Trump and family watched gleefully for at least 90 minutes before acceding to the request to stand against what was happening.
Five people died in the riot, including a police officer, and hundreds were seriously hurt. Afterwards, individual members of the crowd attempted to justify their behavior by asserting that “their president” had told them to take bold and strong action to “stop the steal.” They believed he ordered them to take the matter physically into their own hands. It was clearly his intention. One has only to watch the videos and observe the two months’ worth of voter fraud claims to be clear about what Trump was doing.
It took only a week for the House of Representatives to impeach Trump (again). Ten Republicans in the House added their positive vote to the Democrats’ unanimous decision. If Trump were to be convicted by a two-thirds majority of the Senate (requiring all 50 Democrats and 17 Republicans), it would be possible to hold another vote in the Senate, requiring only a simple majority, to bar Trump from ever holding U.S. government office again.
Senate minority leader Mitch McConnell offered his opinion that Trump was accountable for the insurrection but gave no indication as to how he would vote in the impeachment trial. Republican Senator Rand Paul (Kentucky) took an opposing position, declaring that the trial would be unconstitutional given that Trump was now a private citizen. On February 2, Paul polled Republicans in the Senate, and a large majority of the Republican caucus seemed to agree with him. Despite the evidence, it is unlikely that Trump would be convicted in an impeachment trial.
Trump is more likely to be convicted in criminal court than in the Senate, given currently stated sympathies by Republicans, especially those who continue to be complicit in spreading voter-fraud lies and encouraging others of their ilk to do the same.
If convicted in the Senate, the only substantial consequence would be, after majority vote, that Trump would not be able to hold any governmental office for the rest of his life. The same result would hold true after conviction in criminal court because Section 3 of the 14th Amendment applies: “No person shall … hold any office … under the United States, … who, … as an officer of the United States, … shall have engaged in insurrection … or given aid or comfort to the enemies thereof.” However, in criminal court additional punishment may apply, including imprisonment. A further advantage of a criminal trial would be avoidance of the political circus wherein politicians focus on irrelevant points designed to impress their constituency, blame adversaries and divert focus from the pertinent facts of the case.
Attempting to overthrow the U.S. government is one of the most heinous crimes any citizen can commit against the country. Article I Section 6 of the Constitution cites only three criminal acts that do not protect government officials from arrest during attendance at Congressional meetings. They are “Treason, Felony and Breach of the Peace.” Inciting insurrection in an attempt to prevent a duly elected president from taking office is a criminal act of the highest order, tantamount to treason. Ignoring it and “moving on” is not an option, whether or not the offender is the president of the United States at the time of the offense.
Donald J. Trump has committed many appalling acts and omissions during his administration, not the least of which is the willful spreading of a pandemic that has killed hundreds of thousands of Americans. His atrocious deeds, several that are impeachable, have been highlighted by real (as opposed to fake) media throughout his years in office. As Gabe Lezra, Staff Counsel for Citizens for Responsibility and Ethics in Washington, in an article published on October 1, 2019 aptly summarized, “President Trump’s corruption has been one of the defining stories of his presidency and has begun to normalize levels of corrupt and unethical behavior that we have not seen in decades — if ever.”
Citizens of the United States cannot afford to normalize or give comfort to the atrocious misdeeds of a former president. He must be held accountable. It is not vengeful or partisan for Congress in a unified stance to declare that a president is not above the law. However, barring Trump from ever again holding government office is insufficient condemnation for an act of treason. He should be subjected to criminal trial.
The Constitution allows for a former president to be subject to “Indictment, Trial, Judgement and Punishment, according to Law” once removed from office. Further, Title 18 of the U.S. Code § 2383 — Rebellion or insurrection states, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Unfortunately, once Trump is tried in the Senate and acquitted, his lawyers could claim that trying him again in criminal court for the same offense is double jeopardy as defined in the 5th Amendment to the U.S. Constitution: “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; …”. The Constitutional allowance for subjecting a government official to criminal trial once impeached applies specifically to “the Party convicted.” It says nothing about “the Party acquitted,” which might be taken to mean that double jeopardy could apply.
If getting a conviction at an impeachment trial is unlikely, maybe it is not advisable to hold that trial at all or, if held, not allow it to be carried to conclusion. We need to restore faith in our government, in its elections and in the accountability of those who represent the People. To promote accountability and get closer to truth, Trump should be tried in a criminal court rather than a political one.