Do Donald Trump’s Jan. 6 sins make him criminally liable?

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Rep. Bennie Thompson, the Democratic chair of the House Select Committee investigating the Jan. 6 Capitol attack, has made it clear that the panel is focused intently on former President Donald Trump’s three-plus hours of scandalous silence as the insurrection raged.

Commentators have suggested that as odious as Trump’s silence may have been, it does little to ground a criminal case because criminal law punishes people for action rather than inaction.

But that principle has important exceptions that apply precisely to Jan. 6 and Trump. Beyond that, as more evidence is revealed, it’s increasingly obvious that the former president did act — by encouraging the disruption of the election certification. All in all, a criminal referral to the Department of Justice is a real possibility (whether Attorney General Merrick Garland pursues it is another matter).

Criminal liability…

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