What happened on January 6th at the U.S. Capitol was not the result of mere inaction by Donald Trump.  He failed to act.  Intentionally.

While a mob of his supporters – whom he had just spoken to minutes before – ransacked the U.S. Capitol, he sat comfortably in the dining room of the West Wing, calling his election lawyer Rudy Giuliani and various Republican senators, asking them to please delay certifying the election results. 

The evidence presented by the January 6th Committee has painted a dark picture of Donald Trump’s actions and his failure to act on that infamous day.  But is it enough to charge him with a crime?  Current Attorney General Merrick Garland assured the American people that “no person is above the law in the country.”  

But is that really true?

Donald Trump is not just any former President like Obama, Bush, Clinton, or hell, even Jimmy Carter.  He is still the leader of the Republican Party despite what some polls say.  Candidates like Ron DeSantis appear capable, but nobody has proven they can energize the base quite like Trump.

He will definitely run again in 2024.  The only question is when he will announce.  Some Republicans hope it is not before the upcoming midterms.

So Merrick Garland and the Department of Justice are dealing with not only a former President who tried to overturn an election, but a likely Presidential candidate with support from almost half the country.  No matter how objectively they act, Trump supporters will likely cry political witch hunt, fake news, or worse. 

But something must be done.  There is simply too much evidence of Trump’s incitement, failure to act, and continued provocations for him not to face charges.  Anyone who has watched the full footage of Trump trying to craft his message of lies to the American people, received a full picture of his true intentions.  

He refused to say “the election is over.”  Any ordinary citizen who had tried to overturn the government would have already been in handcuffs.  And many now, in fact, are.  Yet Trump is still free. 

In this article we’ll explore what Merrick Garland’s potential options are for charging Donald Trump for the January 6th assault on the U.S. Capitol.  If he is not held accountable now, it will shroud future elections with uncertainty and potentially cause more (and worse) violence. 

Seditious conspiracy

The most serious charge Trump could face is seditious conspiracy.  Leaders of the Oath Keepers were already charged with this crime, which carries a maximum prison sentence of 20 years.  It would be difficult, however, for any prosecutor to prove beyond a reasonable doubt that Trump is guilty of this charge given the current public record.  

Basically, there would need to be evidence that Trump conspired with those who ransacked the Capitol and that he used force or violence to stop the election certification.  It’s one thing to charge Oath Keepers and others who were caught on camera using force to break into the Capitol.  It’s harder to prove someone directed, incited, or otherwise encouraged that force or violence when they were not physically present, which is the case with Trump.  

Prosecutors would need to show that he directed the violence in some way.  They would also need to show that the violence was intended to overturn the election certification.  

Even though he tweeted at the end of the day on January 6th that “These are the things and events that happen…”, suggesting he participated in the Capitol assault in some way, it’s probably not enough to bring a seditious conspiracy charge.  And despite saying “we fight like hell” in his speech just prior to the Capitol assault, it’s still probably not direct enough to constitute an instruction or incitement to use force to overthrow the certification.

That’s especially true when compared to the Oath Keepers who have been charged with this crime.  In those cases, there’s a wealth of evidence about their planning ahead of January 6th and their use of force and violence on that day in breaking into the Capitol.  By comparison, the case against Trump for this specific charge is weak.  

Obstruction of an official proceeding 

This charge also carries a maximum of 20 years imprisonment if found guilty.  Although it has a similar sentence, it is not as difficult to prove as seditious conspiracy.  Here’s the relevant text of the federal statute (see the starred row in particular):

There is no conspiracy, force, or violence requirement here (as in seditious conspiracy).  Prosecutors would just have to demonstrate that Trump corruptly obstructed, influenced, or impeded the election certification.  Remember, because of the Capitol assault, the certification was delayed for hours. 

Even if they are unable to show that through his speeches and tweets he was guilty of actually impeding the proceeding, there’s another important section of the statute they could potentially turn to.  

That he attempted to do so.

His tweets in the days preceding January 6th, encouraging people to show up and saying that it “will be wild.”  His encouragement of the protestors to march to the Capitol that day.  His tweets that blamed Mike Pence, which were followed by the rioters trying to hunt him down while chanting “hang Mike Pence.”  Trump may have said “no violence”, but he never said “do not obstruct the election certification.”  Or anything to that effect.   

He didn’t tell everyone to go home until after the Capitol had been ransacked for hours.  Which included Mike Pence’s Secret Service detail whisking him out of the Senate chamber and calling their loved ones to say goodbye as the rioters closed in.   

At minimum, this timeline of Trump’s actions – encouraging people to show up, inspiring them to march, and then sitting back and tweeting for them to basically apply pressure on the election certification – violates an attempt to impede an official proceeding.  The fact it was actually delayed suggests he was actually impeded the proceeding, and therefore should be charged.

Witness tampering

Liz Cheney dropped a bombshell in a recent hearing that Trump tried to call a witness in the January 6th investigation.  

“After our last hearing, President Trump tried to call a witness in our investigation — a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call and, instead, alerted their lawyer to the call”  

– Liz Cheney

We currently don’t have too much information on who Trump tried to call and why.  There’s some speculation it was a White House staffer he wouldn’t have had any other reason to call.  It might be someone we could hear from when the committee resumes hearings in September.  

Regardless, for a witness tampering charge to stick, prosecutors would need to prove Trump intimidated, threatened, or corruptly persuaded the person (or attempted to do so) with the intent to “influence, delay or prevent the testimony of any person in an official proceeding.” 

Given that it appears Trump was not able to make contact with the person probably does not give prosecutors enough to charge him here.  Despite the fact Trump had no other apparent reason to call a former staffer.  Prosecutors would need more evidence of intimidation, threats, or corrupt persuasion in order to bring a charge.  Like the other charges noted above, witness tampering carries a maximum 20 year prison sentence.    

The Department of Justice must charge Trump with something

The worst case scenario given the evidence now in the public record is that Trump walks free.  One of the hallmarks of democracy is the credibility of free and fair elections.  Another is the peaceful transition of power.  Neither of these democratic bedrocks were compromised throughout the almost 250 year history of America.

Not until Donald Trump came along.

If his blatant encouragement of protestors to show up in Washington, D.C. on the day of the election certification, his instructions for them to “fight like hell” and march on the Capitol, and then his encouraging tweets from the White House are not viewed as at least an attempt to obstruct an official proceeding, then I don’t know what is.  

As a result of the assault on the Capitol, the certification was delayed and the world questioned whether the U.S. truly has free and fair elections.  Many even question to this day whether the U.S. is still a democracy post Trump.  

His actions on January 6th compromised American democracy, threatened the peaceful transition of power, and made America weaker.  

The only action that would make it worse now would be inaction.  It would send a message that while the rule of law may apply to the average person, those with political power are immune.  That they are above the law.  That powerful people like Trump can act with impunity. 

If that happens, democracy in America will never be the same.