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In Capitol attack, a clearcut case of culpability

The Examiner

Under Federal Law, “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C. Section 2

This means you don’t have to be the one who pulls the trigger to be convicted of a homicide.

Ken Garten

And the guy who drives the getaway car is just as guilty of bank robbery as the guys who went into the bank.

And so is the mastermind who put the gig together, and planned it out with the perpetrators, but did not physically go along.

Yes, so called “aider and abettor” liability in the criminal law is a powerful tool in the government’s toolbox.

As it may apply to the question of whether our former president committed a “high crime or misdemeanor” is that what he did – “aid, abet, counsel, command, induce or procures” – the commission of any of the vast array of crimes committed by the mob that stormed the Capitol on Jan. 6?

You can invoke the First Amendment all you want, but if one’s use of words constitute a crime, then it is a crime nonetheless. Like a mob boss ordering someone to kill someone; the mob boss may be exercising free speech, but it can still get him indicted for homicide.

And for me, when I hear what the former president said, and the reaction it caused, in my view, he did aid, abet, counsel, command, induce or procure the offenses that were committed by the mob.

Keep in mind the disjunctive terminology in defining complicit liability, and importance of the word “or” in the statute. I think at least his words “counseled,” “induced”,OR “procured” what happened. As least one of these. Opinions may differ. But I’m firm on this one. In fact, it’s self-evident.

The thing is this isn’t just about impeachment, in my estimation.

People died. People were injured. Property was damaged and destroyed. The sanctity and security of our nation’s government was attacked.

If, as I believe, our former president aided, abetted, counseled, induced, or procured (or any one of these verbs) with his words, the crimes committed at the Capitol that day, then serious consideration should be given to criminal prosecution, and let a grand jury determine if he should be indicted, and if so, a jury determine if he should be convicted.

People all over the country are now being identified for their involvement in this unfathomably lawless undertaking and brought to justice, as they should be.

And, in my assessment, the man with the microphone who again made his oft-repeated, false and baseless claim that the election was “stolen” incited the clearly fired-up mob with “We have hundreds of thousands of people here…. They’re not going to take it any longer…..”

“We’re going to have somebody in there that should not be there, and we’re not going to stand for that … the most brazen and outrageous election theft ...”

“We’re going to walk down – and I’ll be there with you (but he wasn’t) ... because you’ll never take back our country with weakness. You have to show strength, and you have to be strong ...”

“Mike Pence has to agree to send it back. You will have an illegitimate president, that’s what you’ll have ...”

“The radical left knows exactly what they’re doing. They’re ruthless, and it’s time that somebody did something about it ...”

“Republicans have to get tougher. You’re not going to have a Republican Party if you don’t get tougher.”

“And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

“So we’re going to, we’re going to walk down Pennsylvania Avenue … and we’re going to the Capitol and we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country.”

And that’s exactly what the mob did. And now many of those individuals who were stupid enough to do what our former president urged are being rounded up and arrested and charged with a whole host of federal crimes, while the man behind it all goes free.

Well, so far.

Ken Garten is a Blue Springs attorney. Email him at