WASHINGTON ― Ashli Babbitt is dead because of Donald Trump’s election lies.
Many hundreds of her fellow insurrectionists who attacked the U.S. Capitol on Jan. 6 will own criminal records for the rest of their lives, with a significant number facing prison time, also because they believed the former president’s falsehoods that the 2020 presidential election had been stolen from him.
Trump himself, meanwhile, has thus far escaped any legal consequence for his attempt to overthrow American democracy, despite a federal law that specifically makes inciting an insurrection against the government a felony.
“That is, unfortunately, not that unusual,” said Danya Perry, a former federal prosecutor in New York City, citing organized crime as an example where top mobsters send underlings to do the dirty work while keeping their own hands clean enough to avoid prosecution.
“You’re not the one caught in the trenches with a hammer kneecapping someone,” she said. “It’s harder to prove that someone incited a riot than someone participated in a riot. It’s one of these commonsense things that doesn’t necessarily translate into something in the United States Code.”
Missouri lawyer Al Watkins, who represents several Capitol rioters, including Jacob Chansley, the so-called “QAnon Shaman” who stood in a horned hat on the Senate dais, said Chansley and his other clients certainly believed they were there to help their hero, Trump.
“They bought, hook line and sinker, every word that he spoke,” Watkins said.
Capitol Police officer Harry Dunn testified at the first Jan. 6 select committee hearing Tuesday that the Capitol attackers clearly thought they were there at Trump’s behest: “I told them to just leave the Capitol, and in response they yelled, ‘No, man, this is our house. President Trump invited us here. We’re here to stop the steal.’”
And like a capo who continues on as before even after his minions are locked up, Trump has gone right back to staging rallies and speeches where he is spreading the same lies that incited the assault on the Capitol in the first place.
“If I lost this election, I could handle it pretty easily. When they steal it from you and rig it, that’s not easy. And we have to fight. We have no choice. We have to fight,” he told a Phoenix audience on Saturday.
“Trump is recruiting his new batch of foot soldiers for insurrection 2.0,” said Glenn Kirschner, a federal prosecutor for 24 years, including six running the homicide section in Washington, D.C.
Trump’s advisers did not respond to HuffPost queries. Trump himself, however, in recent public remarks has expressed no regret or remorse about his followers suffering because of his words and deeds.
To the contrary, he has instead been casting Babbitt ― a QAnon conspiracy theorist who was shot by a U.S. Capitol Police officer as she climbed through a broken window into an anteroom through which House members were being evacuated ― as a sort of martyr to his cause. “The person that shot Ashli Babbitt right through the head, just boom. There was no reason for that,” he told reporters at a July 7 news conference at his Bedminster, New Jersey, golf course.
As for those facing criminal charges for everything from trespassing in the Capitol to brutally assaulting police officers defending the building, Trump has likened them to political prisoners. “How come so many people are still in jail over Jan. 6?” he asked rallygoers in Sarasota, Florida, on July 3.
“He’s out there doing it more,” Perry said. “He probably feels like he has a lot of leash right now.”
That sense of confidence comes despite a federal law that makes 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” subject to 10 years in prison ― a law that some experts say could be used to put Trump in the same legal boat as his followers. The immediately subsequent sections of the U.S. Code make trying to overthrow or conspiring to overthrow the government punishable by as much as 20 years in prison.
George Conway, a longtime courtroom litigator and husband of a top Trump White House aide, said Trump’s conduct leading up to and on Jan. 6 was so egregious that he would have started a grand jury investigation within days.
“If I were (Attorney General Merrick) Garland, I would’ve hauled everyone who was in the West Wing on Jan. 6 into a grand jury months ago,” Conway said.
Garland’s Justice Department declined to comment on the matter.
Kirschner, who acknowledged that a prosecution of Trump would not be a slam-dunk because of Trump’s right to free speech, said it was important to try, for the sake of the country, which in 232 years of elections has never before had to contend with a losing incumbent president trying to unconstitutionally overturn the result.
“The only way to stop the big lie is to stop the big liar. We have probable cause plus, plus, plus on Donald Trump for inciting an insurrection,” he said.
Laurence Tribe, a constitutional law professor at Harvard, agreed that Trump’s culpability is clear.
“As Officer Dunn aptly testified, it’s not only the hit man who gets prosecuted but the guy who hired him,” Tribe said.
Perry said she can understand why Garland would want to shy away from going after a former president as “too third-worldy” but agreed that Trump’s behavior was so anti-democratic that it was perhaps a good idea to lay down a marker for the future.
“By not being political, he’s in a sense being political,” she said of Garland. “He ends up treating Trump differently than a lot of other people would have been treated.”
Watkins, though, said that prosecuting Trump could wind up having the opposite effect and give him more stature. He said many of the Jan. 6 insurrectionists have mental health issues and need care, not prison, including Chansley: “The guy was fucking half nude in the winter of Washington, D.C. He had horns on his head. He was wearing a pelt.”
What Chansley and others need, Watkins said, is for the country to take a deep breath and show compassion to those Trump conned, not vindictiveness, and work to lower Trump’s profile.
“Do you really want to prosecute a former president? You’re making a martyr out of him,” Watkins said. “You’re putting him in a position of stardom.”
But Kirschner said the country cannot afford not to prosecute Trump. If Trump had withdrawn from public life and stopped spreading the corrosive and divisive lies about his election loss, letting him quietly fade away might have been an option, he said.
Trump, however, is doing the exact opposite, he said, and aggressively undermining the nation, possibly leading to more violence. “If we wait any longer, there is a risk to public safety,” he added. “The health of our democracy is at risk every moment.”