First-year law students are often taught what might be called the lifeguard analogy: If you happen to see a person drowning and do nothing, even though you could just, say, throw him a rope with no risk to yourself, you would be morally culpable, but not legally so. On the other hand, if you are a lifeguard with a duty to act and you do nothing, there is definitely a legal liability issue.
As the commander-in-chief, Trump was, in effect, our lifeguard, and had a duty to act to stop the insurrection on January 6. His failure to do so creates a legal liability, and, importantly, one that does not depend on his state of mind. In other words, it doesn’t matter if he truly believed the election was stolen. That defense might work against a charge of seditious conspiracy, but not against a dereliction of duty.
(The “state of mind” defense also doesn’t work against a charge of setting up fake electors, but the prosecution would have to show that Trump was personally involved and approved it. That’ s what makes the Georgia case so dangerous for Trump — the DA has the tapes showing Trump personally solicited a crime.)
This observation is courtesy of a New Yorker story: Will “Dereliction of Duty” Be What Finally Gets Donald Trump Indicted?
Thursday’s hearing hewed to this theory of liability, with members of the panel emphasizing Trump’s “dereliction of duty”—that is, his special duty to act paired with his firm refusal to act—when his supporters, whom he had previously summoned to Washington, D.C., and then directed to march to the Capitol and to “fight like hell,” proceeded to invade the building, assault police officers, causing injury and death, and seek to harm Vice-President Mike Pence and members of Congress as they fled. The evidence showed that Trump watched the siege conducted in his name on live television, fully aware of the violence that his armed supporters were unleashing, and that he refused to do anything to try to stop it, for more than three hours.
“Dereliction of duty” is not specifically a crime. But failing to act when one has a duty to act means that one can be held criminally liable for the consequences of that failure. The lifeguard who, while on duty, saw someone drowning and did nothing can be charged with some degree of homicide (I never finished law school, so I can’t say which degree). So, as the New Yorker story says,
[T]he concept is important as a possible path for establishing Trump’s criminal responsibility for the harm that he caused, precisely by not acting when he had a duty to try to stop his supporters. And this route may offer more promise than the other possible criminal charges that have been widely discussed in past months.
Simply put, it doesn’t matter what he (may have honestly) believed about the election being stolen. When violence erupted in the nation’s capital, Trump, in his capacity as commander-in-chief of the nation’s armed forces, had a duty to act to stop it.
Trump’s false view about the election, whether he believed it or not, was irrelevant to his duty to attempt to stop the violence at the Capitol. Quite apart from his role as the Chief Executive and the Commander-in-Chief, Trump knew that his armed supporters were marauding, assaulting, and even seeking to kill, in his name. His instructions to them placed the armed mob at the Capitol, and put people inside the building in harm’s way. That gave Trump a legal duty, as a person responsible for creating physical danger to those in the Capitol, to help stop his supporters once he saw that they had become violent. It is indisputable that he did nothing to stop them for more than three hours, and, if anything, spurred them on with his angry tweets about Pence. Potential charges, then, could include assault and homicide.
The article concludes:
[L]ast Thursday’s [J6 Committee] hearing revealed how the simple fact of Trump’s inaction exposed him to liability, under basic criminal-law principles, for more ordinary wrongs, such as destruction of property and assault with a deadly weapon—crimes for which hundreds of his supporters have already been charged or convicted.
But it goes beyond mere inaction. The tweet at 2:24 PM about Pence not having the “courage” to overturn a lawful election was active incitement. To return to the lifeguard analogy, it would be like the lifeguard throwing the drowning person an anchor or a live shark.
Trump might just end up drowning in his own bile.