The most interesting question, and the one that is most intensely factual, is whether Donald Trump “engaged” in what I agree was an insurrection on January 6. As with every other decision related to this issue, it cannot be based upon whether one wants or doesn’t want Trump to be disqualified from future office.
No one has found a smoking gun, clear evidence that President Trump planned with others for the mob to attack the Capitol. The Anderson petition argues that it would not have happened but for Trump’s “false claims of election fraud, coercive tactics, inflammatory rhetoric, mob mobilization, promotion of political violence, instructions to march on the Capitol, and decision to pour fuel on the fire rather than tell the mob to disperse.” Perhaps so. Perhaps, even, he is responsible in some (serious) sense, certainly his actions or inactions were a negligent (or worse) dereliction of duty, but the case is far from clear that this conduct means that President Trump “engaged” in the insurrection.1
I am not suggesting that President Trump had to enter the Capitol or otherwise personally commit violence. I only say that based upon what facts I know (which are limited to what has been reported by the professional media), it is not obvious that President Trump intended an insurrection.
But our legal system is often called to make judgments about what people intended. Ultimately one or more courts is going to have to hear evidence and make a factual determination. President Trump should be compelled to testify about the what and why of his conduct.
Jay Bohn
September 21, 2023
- Let me be clear. While President Trump had a duty to “See that the laws are faithfully executed” and to “preserve, protect, and defend the Constitution,” and these duties should have led him to take swift and decisive action to protect Congress from invasion by hostile forces. Trump failed miserably and his refusal to take action was, in my opinion, an impeachable offense. (However, as I have written before, the historical case that the Senate retained jurisdiction to try the impeachment after Trump’s term expired is weak.) ↩︎