The threshold of what constitutes this charge seems to be lower than what people surmise vs the Jan 6th take. This question might have already been ruled on be a Federal court (see highlighted text). The DOJ might have a different take that will weigh in on their decision. I'm sure that the that fact of to be found guilty, the legal burden of proof is the highest, will also be a concern. The more I look at what is presented, the more I'm on board with Trump not having to give exact instructions for what resulted. I think common sense would agree. Words do matter.
That being said, I do think that this charge would be problematic for the DOJ. I've been thinking about what Christe (I posted a link to this somewhere) were he spoke of how the Jan 6th committee (paraphrasing) might be interfering with how the DOJ proceeds.
I'm making this post for the lurkers who are interested, I already know how others will react.
page 83
IV. “Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383)
Section 2383 of Title 18 of the United States Code applies to anyone who “incites, sets
on foot, assists, or engages in any rebellion or insurrection against the authority of the United
States or the laws thereof, or gives aid or comfort thereto.”632The Committee recognizes that
§2383 does not require evidence of an “agreement” between President Trump and the violent
rioters to establish a violation of that provision; instead, the President need only have incited,
assisted or aided and comforted those engaged in violence or other lawless activity in an effort
to prevent the peaceful transition of the Presidency under our Constitution. A Federal court has
already concluded that President Trump’s statements during his Ellipse speech were
“plausibly words of incitement not protected by the First Amendment.”633Moreover,
President Trump was impeached for “Incitement of Insurrection,” and a majority of the
Senate voted to convict, with many more suggesting they might have voted to convict had
President Trump still been in office at the time.634
As explained throughout this Report and in this Committee’s hearings, President
Trump was directly responsible for summoning what became a violent mob to Washington,
DC, urging them to march to the Capitol, and then further provoking the already violent and
lawless crowd with his 2:24p.m.tweet about the Vice President.Even though President
Trump had repeatedly been told that Vice President Pence had no legal authority to stop the
certification of the election, he asserted in his speech on January 6 that if the Vice President
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“comes through for us” that he could deliver victory to Trump: “if Mike Pence does the right
thing, we win the election.”This created a desperate and false expectation in President
Trump’s mob that ended up putting the Vice President and his entourage and many others at
the Capitol in physical danger. When President Trump tweeted at 2:24p.m.,he knew violence
was underway.His tweet exacerbated that violence.635
During the ensuing riot, the President refused to condemn the violence or encourage
the crowd to disperse despite repeated pleas from his staff and family that he do so.The
Committee has evidence from multiple sources establishing these facts, including testimony
from former White House Counsel Pat Cipollone. Although Cipollone’s testimony did not
disclose a number of direct communications with President Trump in light of concerns about
Executive Privilege, the Department now appears to have obtained a ruling that Cipollone can
testify before a grand jury about these communications.Based on the information it has
obtained, the Committee believes that Cipollone and others can provide direct testimony
establishing that President Trump refused repeatedly, for multiple hours, to make a public
statement directing his violent and lawless supporters to leave the Capitol.President Trump
did not want his supporters (who had effectively halted the vote counting) to disperse.
Evidence obtained by the Committee also indicates that President Trump did not want to
provide security assistance to the Capitol during that violent period.636 This appalling
behavior by our Commander in Chief occurred despite his affirmative Constitutional duty to
act, to ensure that the laws are faithfully executed.637
The Committee believes that sufficient evidence exists for a criminal referral of
President Trump for “assist[ing]” or “ai[ding] and comfort[ing]” those at the Capitol who
engaged in a violent attack on the United States.The Committee has developed significant
evidence that President Trump intended to disrupt the peaceful transition of power and
believes that the Department of Justice can likely elicit testimony relevant to an investigation
under Section 2383.
For example,Chief of Staff Mark Meadows told White House Counsel
Pat Cipollone that the President “doesn’t want to do anything” to stop the violence.638Worse,
at 2:24p.m.,the President inflamed and exacerbated the mob violence by sending a tweet
stating that the Vice President“ didn’t have the courage to do what should have been
done.”639The President threw gasoline on the fire despite knowing that there was a violent
riot underway at the Capitol.Indeed, video and audio footage from the attack shows that
many of the rioters specifically mentioned Vice President Pence.640Andimmediately after
President Trump sent his tweet, the violence escalated.Between 2:25p.m.and 2:28p.m.,
rioters breached the East Rotunda doors, other rioters breached the police line in the Capitol
Crypt, Vice President Pence had to be evacuated from his Senate office, and Rep. McCarthy
was evacuated from his Capitol office.641
Evidence developed in the Committee’s investigation showed that the President, when
told that the crowd was chanting “Hang Mike Pence,” responded that perhaps the Vice
President deserved to be hanged.642And President Trump rebuffed pleas from Rep. Kevin
McCarthy to ask that his supporters leave the Capitol, stating “Well,Kevin,I
guess these people are more upset about the election than you are.”After hours of deadly
riot, President Trump eventually released a videotaped statement encouraging the crowd to
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disperse, though openly professing his “love” for the members of the mob and empathizing
with their frustration at the “stolen” election.President Trump has since expressed a desire
to pardon those involved in the attack.643
Both the purpose and the effect of the President’s actions were to mobilize a large
crowd to descend on the Capitol. Several defendants in pending criminal cases identified the
President's allegations about the“stolen election”as the key motivation for their activities
at the Capitol.Many of them specifically cited the President’s tweets asking his supporters
to come to Washington,DC on January6.For example,one defendant who later
pleaded guilty to threatening House Speaker Nancy Pelosi texted a family member on January
6thto say:“[Trump] wants heads and I'm going to deliver.”644Another defendant released a
statement through his attorney, stating:“I was in Washington, DC on January 6, 2021,
because I believed I was following the instructions of former President Trump and he was my
President and the commander-in-chief. His statements also had me believing the election
was stolen from him.”645
As the violence began to subside and law enforcement continued to secure the Capitol,
President Trump tweeted again, at 6:01 pm to justify the actions of the rioters: “These are the
things and events that happen,”he wrote,when his so-called victory was“so
unceremoniously & viciously stripped away. . . .”646When he wrote those words, he knew
exactly what he was doing.Before President Trump issued the tweet, a White House staffer
cautioned him that the statement would imply that he “had something to do with the events
that happened at the Capitol”—but he tweeted it anyway.647The final words of that tweet
leave little doubt about President Trump’s sentiments toward those who invaded the Capitol:
“Remember this day forever!”648
