Is a Seditious Conspiracy Charge Next for President Trump?

The split-screen reality of Vice President Pence’s testifying before a grand jury convened by Special Counsel Jack Smith and a petit jury weighing the guilt of several members of the Proud Boys brings into relief the legal reality that for President Trump, January 6 is, to paraphrase the writer William Faulkner, a past that is not even past. Mr. Trump could be forgiven for feeling that when it comes to the events of January 6, 2021, his legal jeopardy emanates from all sides. His vice president testified Thursday about his recollections of those turbulent days just as those who stormed the Capitol swore that they did so on his implicit or explicit command. Mr. Pence’s testimony followed a final effort by Mr. Trump’s attorneys to invoke executive privilege to keep the former vice president from talking. Mr. Pence sought, and found some, refuge in the Constitution’s Speech or Debate Clause. A judge ruled that Mr. Pence — who served as president of the Senate — was only partially shielded from answering questions.Left unprotected was Mr. Pence’s exposure to any illegal behavior on the part of Mr. Trump in the weeks and days leading up to the riot at the Capitol. The former vice president’s memoir, “So Help Me God,” outlines that it was during this time period that Mr. Trump pressured Mr. Pence to block certification of the election results, a deed that would have been crosswise with the 12th Amendment. Before Mr. Pence testified, he told CBS, “We’ll obey the law. We’ll tell the truth. And the story that I’ve been telling the American people all across the country, the story that I wrote in the pages of my memoir, that that will be what I tell in that setting as well.” The case is under seal, meaning that it is not known what questions Mr. Pence was asked or how he answered them. Not under seal, though, is the trial of the chairman of the Proud Boys, Harry “Enrique” Tarrio, and four of his subordinates on charges including seditious conspiracy. Seditious conspiracy was first proposed in 1859 at the instigation of Senator Douglas, who sought it in response to John Brown’s raid on Harper’s Ferry. It was enacted in 1861, after the rise of the Confederacy.Brown himself went to the gallows for treason — against the State of Virginia.Prosecutors have secured seditious conspiracy convictions and guilty pleas from a host of January 6 defendants, suggesting that the charge could be levied at Mr. Trump. It targets those who “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them,” or to “prevent, hinder, or delay the execution of any law of the United States.” While a verdict has not been returned, lawyers for the indicted Proud Boys have sought to pin the blame squarely on Mr. Trump as a way to exculpate their clients. Mr. Tarrio’s attorney said that the Department of Justice was making him a “scapegoat for Donald J. Trump and for those in power.” The lawyer for another defendant, Joseph Biggs, told jurors, referring to Mr. Trump, that “their commander-in-chief sold them a lie.” That attorney, Norm Pattis, called January 6 a “perfect storm” and said that if “the case of United States v. Donald J. Trump” were ever brought, the former president’s admonition to “fight like hell” would be “exhibit one.”Mr. Pattis added: “The leader of the free world sold this narrative, and many members of the Proud Boys believed it.” Prosecutors pointed to a message Mr. Tarrio sent around after the attack, where he noted, “Make no mistake. We did this.” Should Mr. Trump eventually face a jury on charges similar to those confronting Messrs. Tarrio and Biggs, Mr. Trump will likely point to a passage from his January 6 speech at the Oval where he said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”That sentiment could work to undercut the prosecution’s burden to show that Mr. Trump acted with intent to, in the words of the 19th century statute, “conspire to overthrow, put down, or to destroy by force the Government of the United States.” Mr. Trump will argue he was attempting to rescue the Republic, not raze it. During closing arguments, another lawyer for Mr. Tarrio, Nayib Hassan, proclaimed,“It was Donald Trump’s words. It was his motivation. It was his anger that caused what occurred on January 6th in your amazing and beautiful city.”

Is a Seditious Conspiracy Charge Next for President Trump?

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