MSNBC Legal Analyst Declares Trump Could Be Charged With Manslaughter

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.

328 thoughts on “MSNBC Legal Analyst Declares Trump Could Be Charged With Manslaughter”

  1. In America you can sue anyone for just about anything. The government can indict you for anything. The acid is test is can they get a conviction that sticks. In Trumps case most likely not. Law professors are some of the dumbest people on the planet.

  2. THE POLITICAL PRISONER PODCAST: This Week Jake Lang Interviews from His Prison Block
    By Jim Hoft
    Published October 27, 2022 at 11:00am
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    THE POLITICAL PRISONER PODCAST — This Week Jake Lang Interviews Jeff Crouere from his prison block at a maximum security facility in Virginia

    Jake Lang was nearly killed on January 6th when he was gassed and smothered in a huge pile of people on the steps of the US Capitol. The woman beside him, Rosanne Boyland, was killed that day. She was gassed and crushed in the pile. Capitol Police Officer Lila Morris was filmed beating Rosanne with a stick after she was passed out. While Jake was buried under the pile, Capitol police continued to push protesters on top of him. Jake also saw Philip Anderson’s limp body laying next to Rosanne Boyland. Jake was able to pull Anderson to safety and save his life that day. Later Jake was seen battling with police who continued their deadly assault on Trump supporters.


  3. The jury instruction also requires that the “killing was unlawful”, so since the only immediate killing at the Capitol protest was of that of Ashley Babbitt, was her killing lawful or unlawful? If it was lawful, then how can Trump be responsible for it? If it was unlawful, then why hasn’t Lt. Michael Byrd been prosecuted?

    1. Jeffrey: There are about four or more reasons why he was not indicted:
      1. He is a government employee (Deep Stater)
      2. It is assumed he is a Democrat
      3. He is a minority
      4. Babbitt killed? A Trump supporter? And the government is supposed to care?
      5. Babbitt was white. We have too many whites in the nation as it is, so, again, who cares?
      6. Those who died that day deserved it because, as you probably have been told, several officers died that day. (Of course, we know they did not).

    1. Well, it’s Nicole Wallace, who is not known for her insightful wisdom….She’s MSNBC’s version of Joy Behar.

  4. They stole the damned Election, and all I get from you is it was wrong of Trump to tell Pence not to certify, no, the V.P. has that power, no matter what you say Turley. The real threat is people like you will nit admit the damned Election was stolen by THUGS !!

    1. Exactly Turley likes to be seen as a independent middle of the road thinker.. To do that though means he can’t be totally honest which is very sad but typical..

  5. Forgetting 8 weeks after Jan 6th the FBI came out and said they found no grounds of a insurrection . Yet the media and democrats kept hammering the country that Jan 6th was a insurrection . Maybe this is why 84 % of the people no longer trust the media who try and change the narritve for there own goals .

    1. This syndrome formed the basis of the COVID derangement syndrome that kicked in later. Believe in obvious lies and delusion (all contrary to evidence-based facts) are the primary symptom.

      1. Rosanne Boyland was also killed on J6. After being beaten with batons she was then trampled to the ground by capitol police.

  6. …not to mention, the only person who died that day, was Ashley Babbitt… murdered by a cop who violated the Rules of Engagement… and had a history of malpractice of his position, regards to handling of his firearms.

    1. Absolutely WRONG! Protester, Rosanne Boyland died as she appeared in the video to have been beaten to death by a female Capitol Cop. She appears to have been continually beaten while lying already UNCONSCIOUS, thereby posing NO threat, as other protesters tried to pull her limp body to safety.
      Remember, that it won’t be Biden or Harris or Garland or Carl Rove or Mitt Romney or Lizard Cheney that will beat YOU to death; it will be their Flying Monkeys in government costumes.
      But, even more thought-provoking, YOU Flying Monkeys need to be thinking about what YOU will be asked to do to your fellow Americans. The murderous path YOU may have chosen may not be the one of actual “least resistance.”
      Hillary and other Communist Baby Butchers are already openly calling for foreigners to come here and interfere in OUR election. Where do you think YOU will fit into that scenario?
      Should it bother YOU that your opposition will be pretty much anonymous, and that YOU are already vastly outnumbered and outgunned, and that much of the fancy high-tech weaponry YOU may be relying on will undoubtedly end up in the hands of your opposition?
      None of us, or any sane man, would relish that kind of trouble; but as horrible as a real civil war becomes, the Twentieth Century was replete with examples of a much worse kind of trouble.

      1. Also another person from near my area where Boyland was from came home the next day and shot himself in the mouth and died. He was separated or divorced and had two young children and he went into the basement and pulled the trigger on himself when he got home. I have no idea if the two are connected or not but they according to what news I can find little of lived 20 or 30 miles apart and people were traveling or joining up with like minded folks from what I could gather on that day/ He was a reputable young financial guy from Roswell or Alpharetta.

  7. Here’s another example of the kind of ‘Framing’ program in play by the J6 Committee… that they refuse to call the DoD Chief of Staff to testify because he would swear under oath the a request on behalf of the Administration was sent to both Congress (Pelosi) and the DC Mayor proposing the NG be called up to protect the Capitol and the proposal was turned down….

  8. 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.

    Now why would they criticize such a deployment?

    Could it be that they wanted to continue the “peaceful protest” narrative?

    As a matter of fact, when the Park Police used tear gas to clear the violent mob that was attacking the Secret Service security detail protecting the White House perimeter, they accused President Trump of attacking peaceful protesters for a photo op!

    As long as people bring up January 6th, I will bring up May 29th.

  9. Dear voters,
    The Democrat office holders and appointees are stone cold crazy. That term will send many into a frenzy. They are more than willing to destroy foundational precepts of our Constitutional Republic. Some for power, some for greed but the stupidest voting cohort in American history and the narrative pushers have brought us ultimately under the influence of Frankfurt School initiatives. Decade after decade has hidden their propaganda in plain sight in academia and little by little ushered in the Marxist idea of destroying from within and then, when the suffering is bad enough, they hand out rations and redesign our political process. Its called tyranny and you’ve seen it recently with lockdowns, mandated injections and using Government agencies to harass and jail their political opponents and citizens who speak out against their policies. I recommend kicking these orcs out of office on November 8th and whipping them so badly they will all retreat to their safe spaces where we will lock them in. The perverted and deluded have no part in our community, state or nation. If the neo-Marxist Democrats aren’t nullified in this election it will be civil war. Remember, those at the top are working toward the destruction of our way of life so don’t be surprised at what happens between now and November 8th and after. Keep your wits about you, brothers and sisters and keep your powder dry.

    1. Thank you. For all who watched the debates last night…Democrat senate candidate, John Fetterman of Pennsylvania is clearly cognitively incapacitated by his stroke, yet he never did the honorable thing for the voters: withdraw from the race. Do we need more people with cognitive brain damage in Congress? To say nothing of his radical views. Vote accordingly, people. If you vote Fetterman (or Hochul or any of the rest) then you are part of the problem.

      1. That’s because his handlers hope to have him elected, then resign and have the Dem governor appoint his wife who could never get elected, even by a Dem electorate, his replacement. It’s so transparent and sickening.

    2. BEST analysis of this outrageous, dangerous point in history we find ourselves in…could not AGREE MORE!!!! Thankyou for this comment and God Bless!!

  10. Two points, one factual and the other philosophical. First, McQuade’s “argument” is facially absurd. Only one death occured in the Capitol, the murder of Ashli Babbitt by Officer Michael Byrd. Are we supposed to believe that he was somewhow encouraged by Donald Trump? Of course not. If anything, he was motivated by the same hatred for Trump that McQuade expresses. Second, McQuade’s argument violates a basic principle of the criminal law whicl holds that, except in rare instances, one person is not criminally liable for the intentional act of another person. As stated in The Standford Encyclopedia of Philosophy, “Causation in the Law” []:
    “13. Under the intervening human actor branch of the common law’s superseding cause doctrine, there is no liability if a subsequent human actor (rather than a natural event) intervenes to “break the causal chain” otherwise existing (because of counterfactual dependence) between the harm and the defendant’s earlier act, where that intervening actor:
    a. Acts subsequently to defendant’s act, and is thus not a co-causer of the harm.
    b Does an act that is causally significant with respect to the harm.
    c. Acts independently of any motive to so act supplied by the defendant.
    d. Acts with great culpability in bringing about the harm (usually intentionally or sometimes recklessly, but not merely negligently, with respect to the harm).
    e. Acts voluntarily in the narrow, technical sense of the law, namely, the relevant bodily movements are not reflexive, done while asleep, unconscious, in shock, under hypnosis, or otherwise not the product of the defendant’s will.
    f. Acts voluntarily in the sense that he is not coerced by threats, by natural necessity, or by the compunctions of legal duty.
    g. Is a responsible agent (not very young, insane, or very drunk).”

      1. jacklkemp – thank you for bringing up her name. There seems to be some question as to her cause of death. The medical examiner blamed a drug reaction. She may have collapsed and been trampled. But some people claim to have a video showing her being beaten by a police officer when she was lying down. [] Hopefully, when Republicans take control of Congress, the conduct of the Capitol Hill Police will be investigated thoroughly.

        1. The family has “debunked” the drug claim.

          Regardless, the video evidence is that she was towards the front of the crowd, but pushed forward into the mele with the CP at the West tunnel – when the West Tunnel CP violated the ROE and started using deadly force against protestors – many of whom where military, ex-military and law enforcement. On initiating violence against protestors, those protestors CLOSED with the CP and the crowd was pulled/pushed forward.
          Boyland ended up towards the front as a result of the press of the crowd.
          At that point a Black Female CP officer started whaliing on her with a baton – head blows and arm and body blows – again these are legally “deadly force” Drove her to the ground and continued beating on her. The New Orleans Dog Rescue Guy got between Boylan and the CP officer and as a result others were able to drag her back, but she had already stopped breathing.

          There is video of much of this. But all this points to is the necescity of Congress to release ALL the video.

          I have little doubt that with all 1400 hours of video we will find more bad actors among Trump supporters.
          We will also likely find many other things – more evidence of FBI, Antifa and more evidence of CP misconduct.

          But Pelosi wants a simple narrative and the truth is not likely to be simple.

      2. yes she was…seems all the killed and injured were Trump supporters…..and who were all those unlawfully imprisoned….and STILL in prison…Trump supporters…

    1. No matter the Republican candidate, the witch trials will happen.
      Hershel Walker is a good example. unsubstantiated accusations. That’s all Democrats have.
      Clarence Thomas, Brett Kavanaugh, is enough said.
      The FBI leading the charge against Trump was a new escalation.

      Every Republican is just like Hitler.

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