The January 6th Select Committee should refer Donald J. Trump to the Department of Justice for prosecution. But which crimes should they include when they meet this week?
Sadly, the most important crime he appears to have committed will probably be absent from the list. CNN is reporting sources indicate the committee is likely to refer Trump for the following crimes:
- Insurrection against the United States
- Obstruction of an official proceeding
- Conspiracy to defraud the federal government
—January 6 committee expected to announce referral of multiple criminal charges against Trump to DOJ by Jamie Gangel and Katelyn Polantz, 16 December 2022
While these are all backed by mountains of evidence, the most important crime I allege he committed is absent from this list.
The First Alternative
Meanwhile, forty Democrats have signed onto a bill by Rep. David Cicilline (D-R.I.) that would ban Donald Trump from becoming President again. (41 House Democrats Introduce Bill To Bar 'Insurrectionist' Trump From Presidency by Mary Papenfuss, 16 December 2022)
This bill is based on the Fourteenth Amendment, which prohibits anyone who previously swore allegiance to the Constitution from holding any office under the United States if they engage in insurrection.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
[Fourteenth Amendment, Section 3]
The bill lists details of the evidence Donald Trump led an insurrection. But it stops short of detailing the ways in which he rebelled against the United States and gave aid and comfort to our enemies.
The Second Alternative
I think it would be better to base this bill on the main text of the Constitution:
The House of Representatives … shall have the sole Power of Impeachment.
The Senate shall have the sole Power to try all Impeachments. … When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
[Article I, Sections 2 and 3]
It’s clear from these passages that the House has the power to impeach the President, that the Senate must have two-thirds concurrence to convict, and that it is within the power of Congress to use its power of impeachment to disqualify a person from holding the office of President (which is an office of honor, trust, and profit under the United States).
Rep. Cicilline’s bill would only require a majority vote in the Senate, but a bill under Sections 2 and 3 would require a two-thirds vote. However, I think this makes it better in two ways. First, it means Republican Senators would have to go on record again whether they backed the leader of an insurrection against the United States or not. And second, if it did get 17 Republicans to sign on to disqualifying him, it would be a bipartisan repudiation of his privilege of becoming President ever again.
The Core of the Matter
In any case, charging Donald Trump with insurrection is, really, letting him off lightly. I can understand why people try to give him the benefit of the doubt. We don’t want to think more ill of a person than we have to. Not as progressives. Not as Democrats.
But Donald Trump has been misinterpreted. Many people speculate that he’s not all there. They think he’s got a mental deficiency, like narcissistic personality disorder, or some other craziness. Maybe, but that’s not the driving force behind all this criminality.
Other posit that he just incredibly selfish, without it being crazy. They think he does things, like violations of the emoluments clauses of the Constitution (foreign and domestic), because he wants the money.
Still others think he’s power drunk. Or that he just doesn’t understand the law (and doesn’t care about following it).
I have a better theory. At least, I think my theory better fits the pattern of behavior we’ve observed. I think he hates the United States. I think he’s a traitor, and he’s a traitor in order to do as much harm to the country as he can.
This is why, for example, he puffs up Putin, and other enemies of the country. He’s doing it to harm our country. This is why he took classified documents with him when he left office. He’s attempting to harm the intelligence community by showing that their secrets aren’t safe and forcing the various (I believe there are 19) intelligence agencies to scramble around and change their methods and pull people from sensitive areas because they are now uncertain who saw what.
I think he’s stirred up racial hatred because it divides the American people, weakening the country. The entire reason for racism is to pit one group of Americans against another group of Americans. Typically, this is done by people with money to weaken opposition that would otherwise result in stronger labor unions and stiffer business regulation. But I think Donald Trump (and his foreign allies) use it to weaken the United States.
He hates our country because of our core values of equality and justice. He deeply believes that the country should be run by a small, elite group of people (old white men), and the Constitution stands in the way of that goal.
In fact, I think the high point of his life was taking the oath of office, because he knew he was lying and he knew it meant he’d be able to fulfill his cherished dreams of doing maximum damage to the nation. And he set about doing that almost immediately by trying to gaslight the people into thinking he had a massive crowd for his inauguration and by trying to ban Muslims from entering the country.
Donald Trump is a traitor to the United States of America. He is a traitor because he hates our country and every little liberal thing is stands for, all those high-minded things written in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights. He hates the Constitution right down to the last amendment.
We Should Go There
So, I think the most appropriate criminal code for the 1/6 committee to cite is 18 U.S. Code § 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
[See US Code from uscode.house.gov]
This echoes the text of the Constitution, which specifies:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
[Article III, Section 3]
Any number of commentators have claimed that this is only operative in a time of war. The failure of this argument is in the text.
The text in both cases specifies that one of two criteria is adhering to our enemies, giving them aid and comfort.
Therefore, it is not necessary for Congress to have declared war or even for us to be in a state of war with another country. All that is necessary is for the person charged to adhere to our enemies, giving them aid and comfort.
As I pointed out in Prosecuting Donald Trump—Complete, the specific enemies he’s adhered to include:
- Vladimir Putin and the Russian Federation
- Bashar al-Assad and Syria
- ISIS and terrorists, generally
- Kim Jong-un and North Korea
There are numerous instances of Donald Trump committing treason. Those include:
- His stating he believes Russian intelligence over U.S. intelligence.
- His systematic denial Russia is specifically to blame for meddling in the 2016 elections.
- His calls for other countries, including Russia and China, to meddle in our elections.
- His invitation to Russian officials to meet in the Oval Office, likely compromising national security.
- His revelation of intelligence sources and methods, including those of our allies (specifically Israel) to the Russians.
- His cancelling joint exercises with South Korean military forces.
- His withdrawal of special forces from northern Syria.
- His refusal to provide over $390 million of security assistance to Ukraine, authorized by Congress in fiscal year 2019, for several months, delaying the strengthening of their military forces prior to the most recent Russian invasion of Ukraine.
So, the committee should list 18 U.S. Code § 2381 and cite the numerous instances in which Donald Trump committed treason just with respect to 6 January 2021, many of which can be found in the bill filed by Mr. Cicilline.
But the list of instances of treason above should be attached as proof that his treason in leading a violent and armed force against the United States government on 6 January 2021 is just part of a pattern of treason.
That’s important for a conviction, but it’s also important to bring home to the American people how much of a traitor Donald Trump really is.
Let Him Have It
Sadly, what we find with many Democratic politicians, especially officeholders, is a tendency to pull punches. The Republicans do not pull punches. If anything, they are prone to getting so far out over their skis that they topple on their heads.
We don’t need to get ahead of ourselves. The evidence is all there, neatly gathered by the committee.
It is important to hit the Republicans as hard as possible on this issue. They think they can get away with killing off democracy so that they can rule the country. If we credibly accuse Donald Trump of treason, they will have to defend him. And that shows them all up for what they are.
Democrats! Stop pulling your punches! This is not a game of checkers. Politics is war by other means. If you fail, it is literally fatal to people in your constituency.
Go after Donald Trump with the best means available. Refer him on the charge of treason.