Trump’s ‘Choices’ to Do Nothing Are Critical To Prosecution

Prosecutors will take particular interest in tonight’s revelation or characterization that Donald Trump “chose” not to act and January 6th. Trump did not “fail” to act. He chose not to act. The difference is everything.

The House Select Committee’s hearing this evening was billed as Trump’s “supreme dereliction of duty,” and there are some who believe that Trump, as Commander in Chief of the military, could be subject to a court-martial for that dereliction of duty. But this country prides itself in a “civilian-led” military and civilians are generally not subject to a failure to act with the exception of children or animals. It is unlikely that Trump can be prosecuted on any failure to act and the Committee knows it. It was for this reason that Rep. Kinzinger emphasized that Trump wanted the mob to block certification and “chose” not to act. Making a choice is an affirmative act.

The new evidence presented that Trump knew within fifteen minutes of ending his speech that the Capitol of the United States was under attack, and yet there were no records of calls made to either the Defense Department, the Attorney General, Homeland Security, or Secret Service, nor any other organization. He did not call to get information. He did not issue any order. And most damningly, the Defense Department called Trump, and he told DOD that he did not want to do anything and had the DOD talk to Pat Cipollone, who couldn’t order anything. Trump affirmatively chose to not call anyone, affirmatively chose to not take a call from the Pentagon, and instead affirmatively chose to call Senators to encourage them to object, and affirmatively call Rudy Giuliani.

Trump tweeted out a link to his own speech, the one that encouraged the attack. Minutes later, Trump tweeted out that Pence failed the MAGAs.

This is not dereliction of duty. These are actions deliberately chosen in furtherance of a conspiracy, and these actions were taken within a half-hour of Trump returning to the White House. Prosecutors looking at evidence of possible sedition, or – at a minimum, obstruction of Congress, will look at Trump’s actions, not inaction or dereliction as proven by the Committee on Thursday night.

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