In his authoritarian response to protests against white supremacy that swept the nation after the homicide of George Floyd by Minneapolis police, Trump signed an executive order demanding federal prosecutors throw the book at those who damage federal property, including by charging vandals under a provision of the federal code that provides for sentences of up to 10 years in prison. The executive order also sought harsh punishment for those that incite such damage. Under the plain language of this executive order, the militants who stormed the Capitol — as well as President Trump himself — should now be in jeopardy of federal prosecution.
While written to target “anarchists and left-wing extremists” who were at the time toppling statues of Confederates and other politicians who owned slaves, the executive order aptly describes the right-wing militants who stormed and desecrated the U.S. Capitol on January 6th: “These radicals shamelessly attack the legitimacy of our institutions and the very rule of law itself.”
The language of Trump’s executive order is broad and is clearly encompasses those who toppled police barricades, and smashed doors and windows of the Capitol, tore placards from the walls, smeared feces about, and ransacked lawmaker offices: “It is the policy of the United States to prosecute to the fullest extent permitted under Federal law,” the executive order reads, “any person or any entity that destroys, damages, vandalizes, or desecrates a monument, memorial, or statue within the United States or otherwise vandalizes government property.” (Editor’s note: emphasis added.)
The order also explicitly targets those who inspire such wanton destruction. “It is the policy of the United States to prosecute to the fullest extent permitted under Federal law,” it reads, “any person or any entity that participates in efforts to incite violence or other illegal activity in connection with the riots and acts of vandalism.”
Trump has spent the weeks since his resounding election loss spinning up wild conspiracy theories, and lying to his supporters that victory was stolen from him. In his speech to the rabid crowd that went onto storm the Capitol, Trump insisted: “All of us here today do not want to see our election victory stolen by emboldened radical left Democrats,” before insisting, “We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.”
Trump lied that Vice President Mike Pence, then presiding over the ceremonial joint session of Congress tallying the returns from the Electoral College, could block the certification and tip victory his way. “If Mike Pence does the right thing, we win the election.” Echoing the words of his most militant backers, Trump called to “stop the steal.” He then exhorted his followers to “fight like hell,” and promised to lead them himself in a march down Pennsylvania Avenue: “We’re going to the Capitol and we’re going to try and give… them the kind of pride and boldness that they need to take back our country.”
While Trump did not personally join the mob, Democrats of the House Judiciary Committee have openly accused Trump on Thursday of fomenting violence and even “insurrection” on Wednesday.
The President called his supporters to Washington, D.C. and told them to go to the Capitol itself. Unsurprisingly, these seditious calls to action by a desperate man and his allies achieved their intended result—violent insurrection.
— House Judiciary Dems (@HouseJudiciary) January 7, 2021
While sitting presidents are generally immune from prosecution while in office, that protection will evaporate for Trump on January 20th with the transfer of power to Joe Biden. According to the New York Times, White House counsel Pat Cipollone warned Trump of his potential criminal exposure on Wednesday as the mob he’d whipped up overwhelmed the Capitol.
On January 7th, Attorney General Jeffrey Rosen released a statement insisting that “the Department of Justice is committed to ensuring that those responsible for this attack on our Government and the rule of law face the full consequences of their actions under the law.” In a conference call with reporters, the acting U.S. Attorney for D.C., Michael Sherwin underscored: “We are looking at all actors here, not only the people that went into the building” but those who “assisted or facilitated or played some ancillary role in this. We will look at every actor and all criminal charges.”
Asked specifically if that included the president of the United States, Sherwin answered: “Anyone that had a role, and the evidence fits the elements of a crime, they’re going to be charged.”
As he winds down his time in the White House, the president may have one last trump card to play. To escape federal accountability for his actions Wednesday, as well as a wide array of illicit acts covering decades, Trump is said to be weighing an an unprecedented self-pardon.