Barb McQuade, a former U.S. attorney who served during the Obama administration, believes there is enough evidence to charge former President Donald Trump with the federal crime of involuntary manslaughter due to his inaction during the January 6 Capitol attack.
McQuade, who is also a law professor at the University of Michigan Law School, suggested in an op-ed for MSNBC that the Department of Justice (DOJ) should charge Trump with a crime for instructing a mob of his loyalists to head to the U.S. Capitol building while Congress was certifying the results of the 2020 presidential election.
“This theory is probably a bridge too far for DOJ, but failing to call off the mob when he knew they were armed and angry makes the resulting deaths at the Capitol reasonably foreseeable,” McQuade wrote in a tweet sharing her op-ed.
Five people died as a result of the mob attacking Congress, McQuade noted. Given what Trump knew about the mob — testimony to the January 6 committee suggests he was aware that some of his loyalists were armed — “the loss of life was predictable in light of the size of the mob, their emotional state and their use of force,” trump-commit-manslaughter-jan-6-committee-doj-should-find-n1297314″>she wrote.
According to federal law, McQuade went on, involuntary manslaughter requires prosecutors to prove that a person committed an act on federal property, without due care, that could result in someone’s death; this definition also applies to failures to act. Trump’s order for his loyalists to go to the Capitol, after riling them up with incendiary lies about the election being stolen from him, could fall under the definition of the law — as could his refusal to call off the mob hours after their attack began.
“Unlike most members of the public who have no duty to take action to prevent a crime, a president has a constitutional duty to ‘take care that the laws be faithfully executed.’ … On Jan. 6, when Trump was alerted that the situation at the Capitol was getting ‘out of control,’ he had a duty to call in the National Guard to quell the violence,” McQuade said. “According to Joint Chiefs of Staff Chairman Gen. Mark Milley, Trump did not do so.”
Prosecutors would have to prove beyond a reasonable doubt that Trump’s actions or inaction was culpable for the deaths that took place, an argument that the DOJ might be hesitant to pursue.
“Even if it cannot be established that Trump caused all five deaths, such as those resulting from medical emergencies, it seems clear that he caused at least some of them,” the former U.S. Attorney said.
McQuade concluded her op-ed by referencing a comment Trump made during his 2016 presidential election campaign:
Donald Trump once said he could ‘stand in the middle [of] Fifth Avenue and shoot somebody’ and not lose any voters. Can he also cause the deaths of five people and not lose his liberty?
According to an Economist/YouGov poll published last week, just over half of all Americans (51 percent) say Trump was responsible for “a lot” or at least “some” of what transpired, while only 28 percent believe he bears no responsibility at all.
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