Trump’s New Criminal Problem

The world watched in horror on Wednesday as a violent insurgent mob attacked the U.S. Capitol to obstruct the democratic process of confirming the presidential election. Five Americans died in the attack, including Capitol Police Officer Brian Sicknick. If the federal investigation into the deaths reveals that those responsible were incited to violence at the Save America rally held hours earlier, President Donald Trump could face prosecution even if he does not storm the Capitol himself.

Federal Criminal Law (18 USC 373) makes it a crime to solicit, order, induce, or “persuade” another person to commit a crime that involves the threat or use of physical violence. Put simply, it is a crime to persuade another person or mob of thousands to commit a violent crime.

We know from the early results of the investigation that several insurgents have already been charged with crimes. However, the crime that is the president’s biggest problem could be to induce the mob to engage in a seditious plot. Federal criminal law makes it a crime for “two or more people … to oppose the authority by force [of the United States] or by force to prevent, impede, or delay the execution of any United States law ”(18 USC 2384). This crime, including the use of force, was clearly committed by the crowd after being encouraged by the President.

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