Writing for the publication Just Security, law Professor Albert W. Alschuler has now outlined what he describes as “what may be the clearest case for prosecuting” ex-President Donald Trump. In short, Alschuler’s suggestions involve a prosecution of Trump for “violating his legal duty to do what he could to end the unlawful occupation of the Capitol,” he explains, which made him “an accomplice to that crime.” Although “[failing] to prevent a crime usually does not make someone an accomplice,.. it is sufficient when this person had a legal duty to intervene,” Alschuler says. As president, Trump possessed such a duty.
For starters, the Constitution insists that presidents “shall take Care that the Laws be faithfully executed.” The “provision permits good-faith exercises of law-enforcement discretion, but a president unmistakably violates his duty when he refuses to enforce the law because he wants a crime to occur—when, for example, he hopes to advance his own interests through the criminal conduct of others,” the author notes. Trump has been repeatedly reported to have been privately accepting of what was going on at the Capitol, and at this point, reports of his behind-the-scenes behavior aren’t even needed to draw such a conclusion — he said just last week, in reference to his false claims of election fraud, that the “insurrection took place on November 3, Election Day. January 6 was the Protest!”
Besides the unique duties associated with the presidency, Alschuler also writes that a “person who creates a physical danger—even innocently—has a legal duty to take reasonable measures to prevent injury from occurring” — and on this front as well, Trump failed. His public statements regarding what was going on came a considerable amount of time after the metaphorical fires had begun to rage, and in the time that his supporters ransacked the Capitol, numerous police officers were seriously injured by the mob. Further, according to reporter Maggie Haberman, “many aides believed Trump was pleased by what he was seeing… as he repeatedly refused requests to get him to say something clearly rejecting the violence” — and again, Trump’s public remarks mean that the private feelings of aides are no longer the only evidence in support of the notion that he was “pleased.”
Alschuler also wrote as follows:
‘Trump surely must have intended at least the illegal occupation. In addition, his refusal to enforce the law would make him an accomplice to every other crime he sought to promote… The time to forgive Trump is not now, and the way to forgive him is not for the Justice Department to rule out prosecution from the outset. Far from desisting or repenting, Trump continues to praise the crime he aided and abetted… Prosecuting 674 foot soldiers while exempting their chief for political reasons would be disgraceful.’
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