Every act in service of insurrection must be prosecuted

Shortly after voting to acquit Trump on strictly procedural grounds, Senate Republican Leader Mitch McConnell of Kentucky gave a blistering speech in which he made clear both the gravity and the criminality of the January 6 attack on the US Capitol. McConnell said:

American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like… They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he’d lost an election.

Sen. McConnell also laid the blame squarely at Trump’s feet, saying:

There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.

The issue is not only the President’s intemperate language on January 6th. It is not just his endorsement of remarks in which an associate urged ‘trial by combat.’ It was also the entire manufactured atmosphere of looming catastrophe; the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-President.

Before, during, and after the insurrection, we have seen consistent evidence of a coordinated and widespread campaign of menacing threats and coercive intimidation, by Trump himself and by his allies. Each act of attempted intimidation is, under law, a separate criminal act. Where misallocation of electoral or other funds is included, these acts do not stand in isolation, but become part of a potential racketeer-influenced or corrupt organizations (RICO) prosecution.

Hundreds of individuals are facing charges in association with the insurrection, and many of them are linked to armed paramilitary extremist groups that are reported to have plotted an attack on the seat of American government in a violent coup attempt. Federal criminal charging documents outline plots that appear to include an intention to continue working toward a terrorist insurrection.

Each action taken by any person to provide even marginal aid or comfort to these insurrectionist militia can be interpreted to constitute a violation of 18 USC § 2331 (terrorism), § 2383 (insurrection), and § 2384 (seditious conspiracy). Commission of a RICO predicate action can make the offender liable for all of the crimes of the criminal enterprise—including those of which they had no knowledge—dating back 10 years.

Any action by any person to speak or act in defense of Trump, to minimize, justify or condone the insurrection, or to provide any material or indirect support to any of the individuals or organizations connected to the insurrection or to ongoing plots, must be treated as a new criminal act.

Yesterday’s vote by a majority of the Senate should not be interpreted as a technical acquittal of Trump. It releases him from conviction in the Senate, but the trial has now provided new evidence and cause for deeper and further-reaching criminal investigation into every part of the criminal insurrectionist enterprise.

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