We previously discussed the declaration of Harvard Professor Lawrence Tribe that former president Donald Trump could be charged with the attempted murder of former Vice President Michael Pence. Now, MSNBC legal analyst and Michigan Law Professor Barbara McQuade has gone one better. She told MSNBC viewers that Trump could be charged with manslaughter for his role in the January 6 Capitol riot.
Just as Tribe declared his theory was “without any doubt, beyond a reasonable doubt, beyond any doubt,” McQuade appeared equally certain that this was a serious and possible charge.
Anchor Nicolle Wallace was bouncing off comments of Rep. Liz Cheney on what the House might do to Trump when she turned to McQuade for legal analysis:
Wallace: “Let me ask you, I think what they’re saying is that even if you were that deluded, quote, ‘You may not send an armed mob to the Capitol or sit for 87 minutes and refuse to stop the attack. You may not send out a tweet that incites further violence.’ It sounds like around the violence. She’s looking at what the committee talks about as dereliction of duty. Is that a specific crime you can charge someone with, Barbara?”
McQuade: “It’s not a federal offense, but there actually is an interesting legal theory here for manslaughter, which Federal law defines as a death that occurs on federal property when a person acts with a recklessness mindset or even gross negligence. And so Donald Trump, unlike most ordinary citizens, has not only a duty not to do something bad, but an affirmative duty to take action to protect people. I think you could possibly put together a theory based on the facts that Liz Cheney just described to make Donald Trump responsible for the deaths that occurred that day.”
So let’s recap. Trump could be prosecuted for manslaughter because he had an “affirmative duty to take action to protect people”?
The problem is that many officials had an affirmative duty to protect individuals on that day, including congressional leaders and officials. There is no question that Trump waited too long to call back his supporters. Many of us criticized Trump for his insistence that Pence could effectively block certification of the election. I publicly condemned Trump’s speech while it was being given. However, I know of no case that would impose this affirmative duty on Trump as a criminal legal matter.
That does not change due to Trump’s speech before the riot. Indeed, such a use of the speech would contradict controlling Supreme Court precedent.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.
The problem for prosecutors is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
Trump also stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”
If McQuade is referring to 18 U.S.C. § 1112, the courts have imposed an element that she does not mention even for involuntary manslaughter: proximate cause. United States v. Main, 113 F.3d 1046, 1049-50 (9th Cir. 1997) (“When the jury is not told that it must find that the victim’s death was within the risk created by the defendant’s conduct an element of the crime has been erroneously withdrawn from the jury . . . It is not relevant that § 1112 does not expressly mention proximate cause.”).
Thus, the standard jury instruction requires the following:
First, the defendant committed an act that might produce death;
Second, the defendant acted with gross negligence, defined as wanton or reckless disregard for human life;
Third, the defendant’s act was the proximate cause of the death of the victim. A proximate cause is one that played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant’s act;
Fourth, the killing was unlawful;
Fifth, the defendant either knew that such an act was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that such an act might be a threat to the lives of others; and
Sixth, the killing occurred at [specify place of federal jurisdiction].
Putting aside the accuracy of the portrayal of this crime, McQuade’s definition is so broad it could be used against the congressional leaders and staff for their own gross negligence and “affirmative duties.” The one area that has been studiously avoided by the House leadership and J6 Committee is the failure of Congress to take steps to prepare adequately for this protest despite warnings of potential violence. Indeed, the media has assisted in this effort with its own focus in coverage.
The Democrats in the final hearing hammered away at documents showing that the agency knew about violent threats in the days leading up to Jan. 6th. However, the Democrats have refused to pursue the lack of preparations on Capitol Hill as a focus of the hearing. On the day of the riot, many of us noted (before the breach of security) that there was a relatively light police presence around the Capitol despite the obvious risk of a riot. Once the crowd surged, they quickly were able to gain access to the building. Conservative media have featured a video showing an officer standing by as crowds poured into the building.
That obviously does not mean that there was not violence or that Capitol police did not bravely fight to protect the building. Most of us have denounced the riot as a desecration of our constitutional process.
Moreover, at some point, officers may have shifted to deescalating as crowds surged into the building. The question is why there were not more substantial barriers, like those used at the White House. Instead, some barriers were composed of a few officers using their bikes.
The available evidence indicates that the House was warned and that the need for National Guard deployments were discussed. There is a concern that, after criticizing such deployment and fencing around the White House in the earlier riots, the Democrats did not want to be seen following the same course.
An Inspector General report indicated that police were restricted by Congress in what they could use on that day. Previously, it was disclosed that offers of National Guard support were not accepted prior to the protests. The D.C. government under Mayor Muriel Bowser used only a small number of guardsmen in traffic positions.
There is a danger to adopting this type of broad definition of manslaughter and I would also oppose such a charge against Capitol officials. What Professor McQuade is suggesting would allow for the wholesale criminalization of negligence. While it is true that involuntary manslaughter can include a gross negligence basis, it is not as fluid as suggested on MSNBC.
This was not an impulsive suggestion by Professor McQuade. She has been hammering away at this charge for months. In July, she tweeted that Trump could face five manslaughter charges. She explained:
“Of course, he himself was the one who set this risk in motion by summoning the mob and then lighting the fuse with his Ellipse speech urging them to march to the Capitol, but that conduct raises some sticky 1st Amendment concerns. His inaction in stopping the violence does not.”
She then added: “DOJ, you up yet?”
Notably, in those tweets, McQuade emphasized a charge under “DC law, manslaughter” which can then be charged under the federal Assimilative Crimes Act. Again, the use of such a law would fail for the reasons above.
The Criminal Jury Instructions for the District of Columbia, No. 4.25.B emphasize that, while you do not need actual knowledge of the extreme risk of death or serious bodily injury, there must still be a showing of a gross deviation from the standard of care:
“The essential elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are: 1. That the defendant caused the death of the decedent; 2. That the conduct which caused the death was a gross deviation from a reasonable standard of care; and 3. That the conduct which caused the death created an extreme risk of death or serious bodily injury. The gist of the difference between second degree murder and involuntary manslaughter is in whether the defendant is aware of the risk. To show guilt of second degree murder, the government must prove the defendant was aware of the extreme risk of death or serious bodily injury. For involuntary manslaughter, the government must prove, not that the defendant was aware of the risk, but that s/he should have been aware of it.”
The failure to do more in the face of a violent mob is not a compelling basis for such a showing and would likely fold back into those “sticky” constitutional concerns.
It is also noteworthy that D.C. officials have not moved to charge Trump on this or other crimes despite their earlier public statements. After the riot, DC Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks and charging them with incitement. So what happened to that much discussed prosecution? Was that because Trump is just too popular with D.C. officials or there is a lack of interest in such prosecutions? It is because the desire to prosecute over January 6th outstripped the law and the evidence.
As with Tribe’s sensational claim, the suggestion of a manslaughter charge obviously thrills many viewers. However, it creates a misleading portrayal of the existing law and its limitations in my view.