The Case for the Arrest of Donald J. Trump: Incitement of Insurrection and Sedition
By Kira A. Schlesinger, Esq.[i]
In the wake of the willful incitement of violence against the Government of the United States on Wednesday, January 6, 2021, pundits, scholars, the U.S. House of Representatives and even some senators have called on President Trump to resign. Failing his agreement to do so, these same guardians of democracy have asked Vice President Mike Pence to invoke the 25th Amendment. He has indicated he is disinclined at this time to do so. Believing they have no other option, the House of Representatives have drafted articles of impeachment. Again.
With all good will toward preserving our democracy and ensuring the safety of the country during the remaining eleven days of the current presidential term, our government has inexplicably eschewed the having Trump arrested for incitement of violence, sedition, and potentially felony murder or other crimes. The case for arrest under the current circumstances is stronger than at any other time in history and should not be overlooked.
In the early days of this president’s term, the question was bandied about regarding whether a president could be arrested. The pundits concluded that such an act was prohibited by the 1973 Office of Legal Counsel Memorandum (“73 OLC Memo”). That opinion was revisited many times. Most recently, in October 2000, Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel Memorandum concluded that “a sitting President is “constitutionally immune from indictment and criminal prosecution because it would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.”
Neither of these, nor the countless of other discussions on the subject have the weight of law. It may set policy but does not set the limits of available remedies when the putative president has attacked the very fabric of our government. As stated by Walter Dellinger writing for Lawfare.
a review of these documents shows that it is far from clear what criminal prosecution steps are (or should be) precluded—and that there is no ‘longstanding policy’ against indictment of the president. Consider the 1973 OLC memo stating that a sitting president should not be indicted. Far from being authoritative, it was essentially repudiated within months by the Justice Department in the United States’ filing in the Supreme Court in United States v. Nixon.
Whether a memorandum from the Attorney General binds “executive agencies” by tradition and the AG’s statutory duties was central to a 2017 case regarding sanctuary cities. The federal court stated: “Case law does not conclusively support the government’s position that all Attorney General Memoranda are binding on the executive branches”. Cty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201, 1212 (N.D. Cal. 2017) (emphasis added); see also City of Seattle v. Trump, No. 17-497-RAJ, 2017 U.S. Dist. LEXIS 173376, at *14 (W.D. Wash. Oct. 19, 2017) (holding: “Therefore, the Court finds that the AG Memo is not a legal opinion and therefore need not treat it as authoritative or binding on either the DOJ or the Department of Homeland Security.”).
Whatever the value of these memorandums as to the Department of Justice, the Supreme Court has held that it “cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause.” Trump v. Vance, 140 S. Ct. 2412, 2429, 207 L.Ed.2d 907, 924 (2020). There, Chief Justice Roberts, writing for the United States Supreme Court affirmed that even the case of a document subpoena, there was no “heighted need standard” uniquely applicable to the President. Rather, the President “may avail himself of the same protections available to every other citizen.” Id. at 140 S. Ct. at 2430.
In this circumstance, the OLC memorandum cannot bind the hands of the entire government while Trump continues to wreak havoc and threaten the lawful processes of our government. This case and the charges appropriately levied at this president, demonstrate that refraining from arresting Donald Trump will not further the goals of America.
It is beyond dispute Donald Trump is not concerned with, nor undertaking, the performance of his constitutional duties as president. He is doing all he can to threaten the processes of government. It may be the case that a president should not be arrested for tax evasion or some other finished crime while he is, in fact, exercising the duties of president. But what we have before us is an inchoate and ongoing crime against the very country that eschews using arrest to remove the leader of a domestic terrorist group.
And make no mistake: What happened on January 6, 2021 was a concerted effort to interfere with – not carry out – the operations of our government. And, as “President” Trump himself said before being blocked from Twitter, he and his 75,000,000 followers “will not be SILENCED!” Until he was permanently banned from Twitter, his ongoing tweets were understood by many as encouragement to continue action against the government.
On January 6, 2020, violence ensued as a proximate result of Trump directing his followers to go from a Trump rally to Congress. The details were seen across America, and need not be repeated here. Five people died because of Trump’s actions. He was not carrying out the duties of the office of the president, and he is not doing so now.
This slow-rolling crime is ongoing. Trump has indicated to his followers he will not be at the January 20, 2021 inauguration of President Joseph Biden and Vice President Kamala Harris. Some believe this pronouncement was to give an “all clear” sign to Trump’s followers. Moreover, Trump has indicated another attack may occur on January 17, 2020. No one believes that Trump’s actions are “undertaking, the performance of his constitutional duties as president.” Thus, the primary rationale for not arresting a sitting president simply does not apply.
While Congress considers the 25th Amendment, or a second volley of Articles of Impeachment, it seems incumbent upon our government to remove Donald Trump from the White House. It simply cannot be the case that our government is less able than Twitter to curtail the actions of a dangerous president. As no man is above the law, Donald Trump is not. He may resort to the same protections as any other citizen after he is arrested and physically removed from the White House.
In the end, arresting Trump now will set an important precedent. No future president can be permitted to believe they are above the law. They must know that America will respond to crimes of this nature. If indeed no man is above the law, and we must demonstrate the truth of those words.
 The relevant briefs and memoranda are:
- The Sept.24, 1973, OLC Dixon memo
- The Oct.5, 1973, brief for the United States in In re Agnew
- The Feb.12, 1974, memorandum to Independent Counsel Leon Jaworski
- The June 21, 1974, reply brief for the United States in S. v. Nixon
- The May 13, 1998, memorandum to Independent Counsel Kenneth Starr
- The Oct.16, 2000, OLC memorandum
[i] Kira A. Schlesinger, Esq. is the managing member of Schlesinger Conrad, pllc. She regularly argues in state and federal court in Arizona and California. She has also argued before the Ninth Circuit Court of Appeals. She graduated from UCLA School of Law in 1999.