Common Law v. Common Sense

Legal pundits parsing the sworn testimony of witnesses in the investigation of the January 6, 2021 attack on the U.S. Congress have offered a variety of legal opinions on the possibility of Donald Trump being indicted. The commentary runs a gamut of outcomes. At one end are strong beliefs that any proposed indictment, much less conviction of Donald Trump would fail to  meet the requirements of the law, and at the other end, equally firm assertions of Trump’s legal culpability.  I believe this ambiguity results, not from the usual political bias, but rather from the usual tortuous, varying and contradictory interpretations of the letter of the law.

Not being a lawyer and incapable of understanding most of the legalese of common law, I prefer a common sense approach, which isn’t always evident, much less relevant, in legal discussions.  

No one can rationally dispute that a mob violently invaded Congress to prevent the constitutionally mandated sanctioning of Joe Biden’s election to replace Trump as president of the United States.  No one can reasonably doubt that this criminal insurrection resulted above all else from Trump’s continuous and public campaign under the banner of “stop the steal” that he had won the election and that acts of massive electoral fraud had reversed the result.  No one can deny that even as he watched the mob’s violent and lethal attack escalate hour after hour into a destructive and life-threatening rampage, Trump did nothing to mitigate the carnage in the halls of Congress. 

These are not debatable issues of common law or common sense. They are undeniable truths.  The law, however, may nevertheless not hold Trump personally responsible for the mob’s invasion of Congress, their lethal attacks against law officers, their threats to the lives of the vice president and the congressional leadership or their intent to stop the required recording of the results of the presidential election.  Nor might the law characterize Trump’s three-hour refusal to “call off” the mob as a crime despite the uncontestable fact that they were acting criminally to fulfill Trump’s clearly stated objective of overturning the election results.  The law essentially requires evidence beyond a reasonable doubt that the attack was pre-meditated and encouraged, not spontaneous or unpredictable, that Trump personally participated in and/or had prior knowledge of its planned tactics and that he purposefully and intentionally provoked it and then supported continuing the criminal insurrection as it took place.   In other words, the law requires Trump fingerprints on the “smoking guns.” Some legal experts believe such proof has been presented in the January 6 hearings.  Others disagree or are at least doubtful that a legal line directly to Trump has been clearly drawn. 

At the end of the day, it will remain for a Department of Justice investigation to determine whether or not the legal requirements have been met for Trump’s indictment.  From a strictly legal perspective, given the vagaries of the law, the outcome is certainly unpredictable.  And if the process takes too long, the conclusions of the DOJ investigation could conceivably be in the hands of a Republican-if-not-Trump-appointed Attorney General who will, as William Barr did to the Mueller Report, bastardize it to the point of inaction.

Common sense, however, provides obvious and simple answers beyond any reasonable doubt to two key questions: (1) who was directly responsible for instilling the mob’s motivation to literally stop the Congress from accepting the results of the election, and (2) who had the responsibility but refused to take any action to stop the mob’s criminal invasion of Congress?  In both cases, it was publicly and undeniably Donald Trump.  Starting months before the election, Trump claimed that if he lost, the election would be a fraud and on the day of the riot, for all to hear, exhorted the mob to march on the capitol and take action.  For hours thereafter, Trump literally watched the mob ransack the capitol building, wreaking lethal havoc and threatening the life of the vice president, among others. By refusing to act, Trump allowed the mayhem to continue.  His overt actions and his calculated inaction on January 6, 2021 shredded the Constitution he swore under oath to “preserve, protect and defend.” It is a conclusion demanded by common sense if not common law.

(I will not deal with the suggestion that Trump could be charged with some form of fraud against the American people stemming from his perpetration of “the big lie” about the election.  This is quite difficult from a common law standpoint, starting with the premise that a lie does not constitute fraud even if constantly repeated in the face of contrary evidence.   Politicians lie all the time but are not legally committing fraud.  Suffice it to say that you must prove five different parameters to meet the legal definition of fraud, requiring among other things, determining that the accused lied knowingly in support of a crime. The complexity of plumbing the thoughts of a deranged narcissist and pathological liar like Trump could ironically create legal barriers to his prosecution.  Even if he confessed, you couldn’t necessarily believe he believes what he’s confessing.)  

At the end of the day, on January 6, 2021, Donald J. Trump, president of the United States, was the cause and supporter of a egregious act of sedition against the government of the United States unparalleled since the Civil War. It will go down in history as far more subversive and dangerously un-American than anything charged against any so-called communist in the infamous days of Joe McCarthy, much less the Watergate scandal that unseated Richard Nixon from his presidency. Those were comparative amateur hours in which McCarthy and Nixon barely rose to the level of apprentices in malfeasance, while Trump’s unhinged, unsubstantiated and unceasing attack on our electoral process has effectively damaged the core of American democracy.  Trump ultimately incited mob violence, aided and abetted subversion of the U.S. government and its Constitution, was derelict in his duty as commander-in-chief and violated his presidential oath of office.  If he is not indicted for one or more of these treacherous offenses, then common law will have failed American democracy and made a mockery of our pledge of “justice for all.”

It’s just common sense.