Jonathan Turley
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 on 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…
