Law Trump Is Charged With Violating Can Carry the Death Penalty, But Will He Face Execution?
Update: August 7, 2023: This article has been updated with information from an Associated Press fact check. It has also been edited to give readers a clearer understanding of the issues at hand and the conclusions reached by the Wall Street Journal and the AP.
Could special counsel Jack Smith be looking to have Donald Trump put to death for his actions after the 2020 election? After his most recent indictment against the president was unsealed on Tuesday, that prospect has been raised. But like everything else in 2023, the laws, principles, and reality underlying that question are complicated.
The latest raft of charges the former president faces has to do with his actions in the days and weeks leading up to the Jan. 6, 2021, Capitol incursion. The grand jury looking into the events of that day charged him with conspiracy to defraud the United States, obstruction of official proceedings and conspiracy against voters’ rights.
Six co-conspirators also had their actions described in the indictment. The indictment doesn’t name them directly, although The Wall Street Journal notes that five of them line up neatly with what we know about the roles played by former New York City Mayor Rudy Giuliani, Trump lawyers Kenneth Chesebro, John Eastman and Sidney Powell, and former Department of Justice official Jeffrey Clark in the aftermath of the 2020 election.
We’ve known for a while that such an indictment was possible — if not probable — so Tuesday’s development was hardly a surprise. But the potential repercussions from one of the charges that Trump faces is likely to be turning some heads in the coming days.
Breitbart editor Joel B. Pollak wrote on social media, “it’s not just about ‘jailing’ Biden’s opponent.”
Folks, it’s not just about “jailing” Biden’s opponent.https://t.co/0kCVH1PFie via @BreitbartNews
— Joel Pollak (@joelpollak) August 2, 2023
One of the charges that Trump faces is 18 U.S. Code § 241, which states as follows:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or … [i[f two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured — They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.” [Emphasis ours.]
As Pollak noted at Breitbart, “One person — Ashli Babbitt, a rioter shot by a law enforcement officer — died as a result of the Capitol riot on January 6, which Smith said Tuesday was the result of Trump’s claims about the election. But Democrats have blamed Trump for the unrelated deaths of several protesters and Capitol Police officers.”
“Democrats — and some of Trump’s Republican opponents — have also tried to blame him for apparent efforts by some of the rioters to kidnap then-Vice President Mike Pence, Speaker of the House Nancy Pelosi (D-CA). Smith could try to argue the same.”
Now, it is worth noting that, in the 45-page indictment, there’s nothing connecting Trump to any act of so-called “insurrection” on Jan. 6, as the Journal noted in an editorial after the charges were made public: “Instead the indictment charges one obstruction and three conspiracy counts related to what it claims was a broad effort to overturn the 2020 election based on ‘dishonesty, fraud, and deceit.’”
Thus, it may be difficult to connect the former president with the death of Babbitt, given that most of the charges deal with behavior before Jan. 6. But does that difficulty even matter?
The Associated Press reports that while violations of 18 U.S. Code § 241 can result in the death penalty, there is no chance that the death penalty will be in play for Trump because none of the charges noted in the indictment hold Trump responsible for any deaths. Columbia University law professor Daniel Richman was quoted by the AP, saying, “there is zero basis to believe at this point that [Trump facing the death penalty] is a possibility.”
The other charges also carry up to 20 years in prison, bringing a total if the terms were to run consecutively to 55 years. If Trump were convicted of everything Jack Smith has charged him with, and all of Trump’s terms were to run consecutively, he’d be in prison for over half a millennium.
Considering Trump is 77 years old, practically any of these charges — if Trump were to be found guilty and prosecutors were to push for the maximum — would likely lead to the former president spending the rest of his natural life behind bars.
It’s also worth noting that this indictment wasn’t met with as much enthusiasm as the first round of charges from Smith outside of reliably liberal corners of the media. (The progressive website Salon, for instance, trumpeted the news with the headline: “Trump finally indicted for Jan. 6 plot: Here’s why this is the big one.”)
According to Breitbart, constitutional scholar Jonathan Turley told Fox News that there was “less than meets the eye in this indictment.
“I thought the last indictment was a very serious threat for Donald Trump. When I take a red pen through material that is protected by the First Amendment, it reduces much of this to a haiku. Many of the things that the prosecutor is charging here [are] protected speech,” Turkey said.
“The most jarring thing about this indictment is that it basically just accuses him of disinformation,” he added.
“This is a disinformation indictment. It says that you were spreading falsehoods, that you were undermining the integrity of the election. That’s all part of the First Amendment.”
Turley also likened the case to Smith’s prosecution of former Virginia Gov. Bob McDonnell, who was convicted of corruption in 2014 in a case that was in an 8-0 decision by the Supreme Court in 2016. (The seat of the late Justice Antonin Scalia was vacant at the time.)
“And this reminds me of sort of the [McDonnell] complaint, where he took the Virginia governor, got a conviction, and then it was unanimously overturned by the Supreme Court,” Turley said. “It is a bridge too far.”
Yes, even in Washington, D.C., even with a judge who’s been one of the harshest when it comes to sentencing convicted participants in the Capitol incursion, according to The Associated Press, the charges and the amount of time they carry may simply be too much of an ask.
Finally, regardless of the actual Smith indictment, the fact that a prosecutor could have potentially asked for the death penalty in a case that, at its core is about “disinformation,” should be disturbing to Americans.
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