Could Trump be Tried for Murder?
What happens when a group of criminals decides to commit armed robbery, but someone dies during the commission of the crime? Under the felony murder rule, they all can be prosecuted for murder. Although one might wonder what this has to do with Trump, January 6th was more than a terrible day in American history. It is more than a day where Trump’s lies resulted in angry and delusional supporters trashing our Capitol, as if they were wolves pillaging chickens in an unguarded coop. It is a day where five people died while conspirators — Donald Trump and angry rioters — were committing a felony. The felony murder doctrine shows how the responsibility for these deaths can be laid directly at the feet of the president.
The Felony Murder Doctrine
As a former felony prosecutor, I was often surprised how many defendants went to prison under this doctrine, even as their defense attorneys pleaded that “my guy was only there for armed robbery! He never planned to kill anybody! He’s as upset as you are that someone was killed!”
Under the felony murder rule, it’s possible to be charged with first-degree murder even if there’s no intent to kill. All that’s necessary is the participation in the commission of a felony, where a death occurs during the felony, even if the defendant wasn’t the one who killed the victim.
A Timeline of Sedition
Reviewing the series of events on January 6th shows that the disaster was planned, coordinated, and driven by Donald Trump. Under the US Code, this makes a case for the act of Seditious Conspiracy, which is essentially two or more people conspiring to “delay the execution of any law of the United States or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Did Trump conspire to delay the execution of any law, along with others? Did he hope to pursue his false claims of “stop the steal” by preventing the US government from certifying Biden’s electoral victory under US law?
Before January 6th, Trump strongly encouraged his followers to show up in Washington on that date to protest his falsely claimed “unfair and stolen” electoral “loss,” claiming “be there — will be wild!” He took advantage of mentally fragile, and easily led followers, priming them for a crescendo of events that would avenge his loss (as well as their feelings of victimhood that life is unfair, Democrats are evil, white power is threatened, etc.) This is no different than Heaven’s Gate cult members being told by Marshall Applewhite to kill themselves in order to catch the Hale-Bopp comet; at this point, reasoning plays no role here.
Egged on by Trump, thousands of followers heard Trump’s rally cry and chimed in on social media in coordinated efforts to help him avenge his “stolen” loss. One example of coordinating with Trump is Kylie Jane Kremer, founder of a Stop the Steal group banned by Facebook who enthusiastically tweeted “the cavalry is coming Mr. President!” Trump retweeted her post, saying “A great honor!” The extremist Boogaloo group chimed in that they were ready to “burn down DC!” Others questioned, “who’s running arms and ammo to dc for when the fun starts?” Rather than clamoring to get to Washington for a peaceful protest, it seems obvious that this whole “law and order” group seems ready for sedition. Trump’s spineless group of enablers in Congress and the Senate (I’m talking to you Ted Cruz, Josh Hawley, and many house Republicans) probably thought they could still function as supportive sycophants who needed Trump’s voters, unaware of the Frankenstein monster about to be unleashed that they had helped build and enable.
Right before the mob stormed the Capitol, Rudy Giuliani yelled to the enraged crowd that this will be “trial by combat.” Donald Trump Jr. chimed in that this is Trump’s party and that the mob should send a message to Republican legislators counting the vote over in the Capitol: “This isn’t their Republican party anymore,” he yelled, “ This is Donald Trump’s!” Then the president’s son urged: “If you’re gonna be the zero and not the hero, we’re coming for you and we’re going to have a good time doing it!” The president capped off the love fest by urging the mob that he’ll never concede because “you’ll never take back our country with weakness. You have to show strength, and you have to be strong!” After also insinuating that Mike Pence should be punished unless he goes along with this seditious act, he instructed the mob to march over to the Capitol, where they could ostensibly take back the country.
The blood on Trump’s hands could not be more clear; because of Trump’s delusional clarion calls that America has been stolen and only the rioters could help him fix it, our Capitol was stormed and trashed and five people died, including a police officer. Whether the felony murder rule under the federal murder statute would apply to the act of sedition is unclear (and unlikely), but based on what happened, a murder charge is warranted.
A few days later, one can walk by the Capitol and see emergency barrier fencing surrounding the people’s house, an ominous reminder like yellow crime tape surrounding a murder scene. An assault on America that resulted in multiple deaths happened inside. A stain that will hurt our country for generations to come. Trump’s meek fake late apology and phony disdain for the rioters who he had told “you’re special” and “we love you” the day before should be roundly ignored.
Just as defendants in court can’t complain about the unintended consequences of a death that happens while participating in an armed robbery, the president should pay.