Trump's inaction during Capitol riot underscores a 'horrible dereliction of responsibility' that could be evidence for criminal charges against the former president, criminal law expert says

Advertisement
Trump's inaction during Capitol riot underscores a 'horrible dereliction of responsibility' that could be evidence for criminal charges against the former president, criminal law expert says
January 6 panel, on July 21, 2022, plays video of Donald Trump recording a public statement more than two hours after the Capitol was breached.Alex Brandon/AP
  • Jan. 6 panel on Thursday outlined 187 minutes of Donald Trump's inactivity during the Capitol riot.
  • Considering presidential duties, inaction during the riot arguably is a criminal act, Stanford criminal law expert says.
Advertisement

Thursday's January 6 hearing may not have contained the same bombshell testimony as Cassidy Hutchinson's hearing, in which she alleged Donald Trump lunged at his security, but it did outline in painstaking detail evidence that could be used against the former president: Everything he didn't do in the hours during the Capitol riot.

"As the committee kept emphasizing, the real theme that was distinctive about this hearing was its emphasis on Trump's notable inaction rather than his actions," said Robert Weisberg, a criminal law professor at Stanford Law School and former clerk for Justice Potter Stewart. "Therefore supplementing the actions that were laid out in previous testimony."

The panel provided a close-up view of how Trump spent most of his time inside the White House: watching television and making calls to his attorney Rudy Giuliani and Republican senators, rather than recruiting law enforcement or immediately putting out a condemning public statement to his supporters as they were breaching the Capitol.

It continues to provide additional "character data" into Trump and what many people already feel was his "horrible dereliction of responsibility," Weisberg said.

But when it comes to evidence of a crime, there's one nuanced reading of criminal law that could argue how Trump's inaction makes him just as culpable for crimes — such as obstruction of Congress, causing physical harm, or vandalism to the Capitol — when considering presidential duties, according to Weisberg.

Advertisement

"The argument of his inaction would be that: In his role as president and in his role as someone who at least was already somewhat responsible for stirring up activity at the Capitol, he then had a duty to stop it when he realized how violent it was getting," Weisberg said. "Therefore, the not-doing-anything during those 187 minutes is itself a criminal act."

The law professor gave the analogy of watching a child drown. If a child was clearly in distress and ends up drowning in front of you, can you be criminally responsible for it?

The rule of thumb to consider here is if the individual had a pre-existing duty to the child, such as a parent, guardian, or lifeguard, Weisberg said. If there was some responsibility, then the individual could be culpable of a crime.

"If my omission to act is done when I'm conscious of what's happening, I can be guilty even of homicide there," he said. "I culpably caused it."

Whether this would convince a grand jury in a trial, however, is another question.

Advertisement

"It's an argument that could be made," Weisberg said. "I'm not sure if it would win before a jury, but there's doctrinal basis or it."

{{}}