Over the last four years, there has been a type of race by politicians and pundits who seek to outdo each other in the most sensational claims of how Donald Trump could be prosecuted or impeached on an ever-expanding list of offenses. Each claim is stated with absolute certainty despite long-standing questions or constitutional barriers. Democratic Rep. Maxine Waters of California has been a standout in this crowd — calling for impeachments and prosecutions from the very beginning of Trump’s term in office. She is now insisting that Trump can and should be charged with “premeditated murder” over the deadly riots at the U.S. Capitol on Jan. 6th. The statement was made on MSNBC which has trafficked in such ridiculous theories without any pushback from the media or legal experts.

Waters made her statement in an interview with Joy Reid, who has had one of the most controversial records in television for her racially charged language, dubious legal arguments, and unsupported claims. Reid notably does not press Waters on her claim that Trump should be charged with premeditated murder.

Here is the interview:

In the interview, Reid refers to the 1990s and the “insurrections in Los Angeles.” It is not clear from the interview what constitutes an insurrection in the 1990s but the term “riot” seems effectively barred today in favor of “insurrection.”

When Trump or his allies made outlandish and unsupported claims about the law in the past, the media piled on with coverage stating that such claims were ridiculous or unfounded.  I regularly called out Trump for such claims, including his call for changing whole areas of law like defamation.  However, equally unsupported claims on the left are met with little or no push back from hosts or the media.

Waters states “He absolutely should be charged with premeditated murder because of the lives that were lost for this invasion with his insurrection,. For the President of the United States to sit and watch the invasion and the insurrection and not say a word because he knew he had absolutely initiated it – and as some of them said, ‘he invited us to come. We’re here at the invitation of the President of the United States.”

In Washington, D.C., a person is guilty of first degree murder when he or she specifically intends to kill another purposely with premeditation and deliberation, or kills while in the process of committing a felony. See Section 22-2104.  Most states require that first-degree premeditated murder be proven as a willful, deliberate, premeditated killing. That is treated as a specific intent crime with the showing of a purposive act or an act with express malice. You must generally show a specific intent to kill and premeditation is usually shown by evidence that a defendant reflected on the act or planned for the act of murder.

Waters’ home state courts have dealt with this issue recently:

“Murder, whether in the first or second degree, requires malice aforethought. (§ 187.) Malice can be express or implied. It is express when there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills with “no considerable provocation . . . or when the circumstances attending the killing show an abandoned and malignant heart” (§ 188, subd. (a)(2)). When a person directly perpetrates a killing, it is the perpetrator who must possess such malice.  People v. Gentile (Riverside County Court December 2020).”

In this case, there is no evidence that Trump directly murdered anyone or sought the death of anyone.  He is being accused of conspiring in the commission of such murders. That sounds more like a claim of being an aider and abetter to murder. However, even in California, the use of a natural and probable consequence has been limited. Courts have balked at such broad interpretations. “Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the “natural and probable consequence” of the crime the accomplice aided and abetted (i.e., the nontarget offense).” Moreover, as explained on one legal site, the courts have held, in People v. Medrano, 42 Cal. App. 5th 1001 (2019), that a prior law eliminated “the natural and probable consequences doctrine [as] a viable theory of accomplice liability for attempted murder.”

This distinction was again recently discussed by a California court:

“In Chiu, we held that the natural and probable consequences doctrine cannot support a conviction for first degree premeditated murder. (Chiu, supra, 59 Cal.4th at p. 167.) We reasoned that in the context of murder, the natural and probable consequences doctrine serves the purpose of “deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing.” (Id. at p. 165.) But this purpose “loses its force” when an accomplice is held culpable for first degree premeditated murder under a natural and probable consequences theory. (Id. at p. 166.) First degree premeditated murder carries significantly higher penalties than second degree murder and requires the additional mental state that the killing be “willful, deliberate, and premeditated.” PEOPLE v. GENTILE Opinion of the Court by Liu, J. 12 (§ 189, subd. (a); Chiu, at p. 166.) Whether or not the direct perpetrator killed with premeditation “has no effect on the resultant harm. The victim has been killed regardless of the perpetrator’s premeditative mental state.” (Chiu, at p. 166.) We further concluded that subjecting an accomplice to enhanced punishment based solely on the “uniquely subjective and personal” mental state of the direct perpetrator was inconsistent with “reasonable concepts of culpability.” (Chiu, supra, 59 Cal.4th at pp. 166, 165.)”

In her interview, Waters was apparently referencing charges that some of the rioters had planned in advance to storm the Capitol. On the day of the riot, many of us noted that some of the rioters clearly brought ropes and other items that indicated preparation to the attack.  Those reports however cut both ways. It certainly shows that those individuals had premeditation, but it also shows that the speech itself may not have been the incitement for those individuals. Critics can fairly note that the President had engaged in reckless rhetoric for weeks. However, there is a difference between reckless and criminal speech. More importantly, if such comments are now dispositive evidence of premeditation for murder, it would allow such vicarious charges for homicide in a wide array of cases involving politicians.

While Waters has defended her long list of impeachable offenses as based on the view that “impeachment is whatever Congress says it is,” the same is not true of the criminal code.