As this site has explained before (and all attorneys who read this site already know) there are very few crimes that one can commit for “not doing something.” If one has the ability to easily pull an old lady out of the way of an oncoming bus, one will not be charged with a crime if one simply lets the bus hit the woman. The very few crimes that do penalize someone for “not doing something” usually involve children, guardians of vulnerable adults, and business employees that have a duty to the company.
Thus, the people that believe that Donald Trump could be charged for “not doing anything” while the Capitol was being sacked by his followers are probably making an excellent political and moral point (while also pointing at very good evidence) but not a crime in and of itself.
For Trump to be implicated in a crime, he would have had to have had prior knowledge of what was planned for the day, agreed to the plan, and have taken one overt act, perhaps a speech in furtherance of that plan. If the Select Committee can prove that Trump did all three of the above, then it has a strong criminal case against Trump, making him a conspirator, every bit as guilty as Flynn, Stone, and the others.
Speaking of which, there is a new leak out that the much-discussed “War Room” in the Willard Hotel has been misreported. There was no “War Room,” there were “war rooms,” plural.
Really important re Trump War Rooms at the Willard: there were MULTIPLE war rooms — Trump lawyers Giuliani, Eastman, Epshteyn plus Bannon was one “command center.” Flynn and Stone had a separate operation.
— Hugo Lowell (@hugolowell) December 28, 2021
“Separate Operation”? There was more than one? Or was there more than one component to one operation, each assigned a different task?
For our purposes, it does not matter. There have been credible reports that Trump made calls to the “War Rooms” prior to the speech.
NEW: Jan. 6 committee chair Bennie Thompson says they will investigate Trump’s call to the Willard seeking to stop Biden’s certification from taking place just hours before the Capitol attack. @GuardianUS https://t.co/GX60lFqUyw
— Hugo Lowell (@hugolowell) December 27, 2021
Exactly what was to be planned from the Willard Hotel? From the perspective of the United States Constitution, if one was “planning” something to somehow keep the presidency, that plan should have involved U.S. Senators, a lot of U.S. Senators, meaning it should have been run out of the Capitol.
Evidently, a portion of the “plan” for the day didn’t involve simply having Vice Presidents and Senators do as they were told and it was – likely – that portion of the “war” that was planned in those war rooms – plural.
Prior knowledge, a meeting of the minds or agreement regarding a plan, and one overt act in furtherance of the plan, the three elements that comprise a conspiracy, and it sounds like the committee is honing in on just that type of investigation.
Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest as a dual Canadian-American citizen, which he grows increasingly thankful for every day. He now enjoys life as a single dad, writing from the beaches of the Gulf Coast, getting advice from his beloved daughter and teammate. He is very much the dreamy mystic that cannot add and loves dogs more than most people. He also likes studying cooking, theoretical physics, cosmology, and quantum mechanics. He likes pizza.
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