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Why Trump can't be prosecuted

Many analysts have suggested that President TrumpDonald TrumpIran's leader vows 'revenge,' posting an image resembling Trump Former Sanders spokesperson: Biden 'backing away' from 'populist offerings' Justice Dept. to probe sudden departure of US attorney in Atlanta after Trump criticism MORE ought to be criminally prosecuted for his part in the deadly events of January 6. It won’t happen. Courts, convicting defendants of murder, have declared that one who endangers others “for his diversion merely” manifests a “depraved mind, regardless of human life.” That may be Trump. But he would, as the saying goes, get off on a technicality.

As a moral matter, I believe there is little doubt that Trump is guilty. He is to blame for five deaths, including that of a police officer. He inflamed the mob that attacked the Capitol, and then made no effort to stop them when he was the only one they would have listened to. The violence was the culmination of a campaign of deliberate lies and conspiracy theories about a stolen election, promoting hysteria that was likely sooner or later to get somebody killed. His presidency has been a gift to America’s enemies.  Impeachment is amply warranted. But criminal prosecution is different. 

There are two criminal law doctrines that point toward the wrong he committed. But in order for him to be convicted, they would have to operate in tandem. In his case, they don’t. 

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“Depraved-heart murder” raises, to the first degree, homicides in which the defendant does not intend the death he causes, but, as one court put it, “engages in conduct which manifests a depraved indifference to the value of human life.” Speeding through crowded streets for the thrill of it is a paradigmatic case. 

Trump’s speech does not fit that description, but his behavior once the violence started fits it all too well.

He evidently sent the angry crowd toward the Capitol without any clear idea of what they would do when they got there. His speech was full of lies, but that isn’t a crime. He vaguely told them to “fight like Hell,” but that’s a familiar political metaphor that doesn’t ordinarily connote physical violence. Trump thought that mass mobilization would induce members of Congress to change their positions, but that doesn’t necessarily involve illegality. Sen. Bernie SandersBernie SandersFormer Sanders spokesperson: Biden 'backing away' from 'populist offerings' Amanda Gorman captures national interest after inauguration performance Woman who made Sanders's mittens says she's sold out MORE (I-Vt.) has offered the same notion to explain how he expects to enact political nonstarters like “Medicare for All.”

That’s why (as the Justice Department concluded) his speech isn’t punishable as incitement. Under the First Amendment, incitement can be punished only if it intentionally calls for lawbreaking that is likely to occur. Trump did not advocate lawbreaking. What ensued probably surprised him as much as anyone. It would not have happened except for the remarkable, unpredictable failure of the Capitol Police. If the mere knowledge that some lawbreaking would probably happen were enough to punish speech, we would be locking up Black Lives Matter organizers.

Once it was clear that violence was occurring, however, he could not be bothered to stop it, even though he was in contact with the trapped senators. He was on the phone with one of them, cajoling him to slow down the vote counting. Sen. Ben SasseBen SasseSenate approves waiver for Biden's Pentagon nominee Budowsky: Democracy won, Trump lost, President Biden inaugurated Pompeo labels China's treatment of Uighurs 'genocide' MORE (R-Neb.) reports that senior White House aides told him Trump was “delighted” when he saw the rioters forcing their way into the building and “confused about why other people on his team weren’t as excited as he was.” Aides and legislators begged him to tell his supporters to leave the Capitol, either by tweeting or by calling in to Fox News. Vice President Mike Pence and his family were in danger. Trump didn’t seem to care.

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But depraved indifference homicide normally requires that the actor actually do something. In such cases, death is caused by “the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.” Trump could not have anticipated that the crowd would surge into the Capitol, and anyway recklessness is not sufficient to punish incitement.

A second legal doctrine holds that, although there is ordinarily no duty to rescue those who are in peril, it’s different if you are the one who placed the victim in danger. If you push someone into the lake, you had best pull them out again, or else you’re a murderer. But even though Trump had a moral obligation to stop the destruction, he didn’t specifically command the mob. So, he committed no crime. 

In short, there’s no way to merge depraved heart indifference (present here) with a duty to rescue those you have placed in peril (also present here). 

This is not a happy conclusion. Trump embodies the wrongs that both of these doctrines target. He behaved despicably. In a just universe, he would be punished. 

On the other hand, criminal law is narrowly limited for good reason. A defendant must be proven to have violated some preexisting, clearly defined prohibition. It is not enough to show that he is nasty. A world in which the state is free to punish those it deems nasty would be frightening. Trump is immune from prosecution because of the very institutions, limiting the abuse of political power, that he has struggled against throughout his presidency.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.