Can the US constitution hold Trump accountable for January 6th?

Prison lights on deep orange tan

We’ve all seen Trump’s mugshot – it’s the first ever taken of a former US president. Indeed it doesn’t look as if the prison lights have cast a flattering light on his deep orange tan, nor have his actions in relation to the storming of the Capitol cast him as an honest and honourable candidate in the 2024 elections.

Donald Trump, the ex-president of the United States is currently facing dozens of criminal charges for which he will go on trial for several times in the next year and a half. 

These convictions include false accounting to disguise a payout to adult film star Stormy Daniels, the hoarding of classified files at his estate in Florida, and the alleged efforts to overturn his 2020 electoral defeat.

One might think that if Trump were imprisoned, that might be good grounds to deem him ineligible to run for office in the 2024 elections. Nevertheless, the reality is that there is not actually anything in the US constitution to bar a convicted criminal from continuing with their election campaign and even winning an election – in 1920, the Socialist Party candidate Eugene Debs gained a million votes whilst imprisoned.  

A glimmer of hope

We all remember the events of January 6th 2021 – the day when a mob of Trump supporters stormed the Capitol in response to his defeat in the 2020 presidential elections. On 5th September 2023, Enrique Tarrio, one of the main orchestrators of the riot and the former national chairman of the American far-right group the ‘Proud Boys’, was sentenced to 22 years in prison for charges which included seditious conspiracy against the United States.

This is the longest sentence handed out to any of the more than 1100 defendants involved in the Capitol riot – to frame this in the context of the US criminal justice system, according to the latest data from the Bureau of Justice Statistics, the median time served for murder is 17.5 years. The fact that a sentence of this severity has been handed out to a Capitol rioter could provide a glimmer of hope that Trump too will be held accountable for his involvement in the events of January 6th. Though his being a criminal will not stop him from running for office, the nature of the charges he faces could.

Who are the proud boys?

The Proud Boys are a far-right activism group established during the 2016 US election by Canadian-British right-wing activist Gavin McInnes, who has since distanced himself from the group. They describe themselves as an exclusively male club of “Western chauvinists” who “refuse to apologise for creating the modern world.” Above all, the group are united by a vehement dislike of left-wing politics and a love for Donald Trump. 

What was their involvement in the storming of the Capitol on January 6th? 

Enrique Tarrio took over leadership of the Proud Boys from McInnes in 2018. Tarrio prepared the storming of the Capitol on January 6th, and orchestrated and encouraged violence despite not being in Washington that day, having previously been ordered by a judge to leave the city. He was found guilty of seditious conspiracy and obstructing official proceedings at a Washington DC federal court in May 2023. In the hearing, US District Judge Timothy Kelly stated “Mr. Tarrio was the ultimate leader, the ultimate person who organized, who was motivated by revolutionary zeal … That conspiracy ended up with about 200 men amped up for battle encircling the Capitol.” 

What does this mean for Trump?  

The fact that such a lengthy sentence has been handed out to Tarrio shows that the US criminal justice system is taking threats against democracy seriously. Trump is facing a string of criminal charges, one of which, importantly, accuses him of trying to cling to power by interfering with the results of the 2020 election (the Georgia indictment).  

In 2020 Trump stood on the debate stage and, when asked if he would denounce white supremacists and militia groups, specifically the Proud Boys, he told them that if they were listening, to “stand back and stand by.”  

In a congressional hearing room in 2021, Capitol Police Officer Harry Dunn pleaded for the coup plotters to face accountability: “If a hitman is hired and he kills somebody, the hitman goes to jail. But not only does the hitman go to jail, but the person who hired them does. It was an attack carried out on Jan. 6, and a hitman sent them. I want you to get to the bottom of that”. 

While Tarrio is considered to be one of the key hitmen involved in organising the attack on the Capitol, it is the view of federal and state prosecutors in Georgia that the violence of January 6th was in service of a larger plot executed by Trump and his allies. 

The January 6th hearings make it clear that Trump was instrumental in plugging that day as a target for a large demonstration, and that he weaponised the events of January 6th to further his own plot to question the results of the 2020 election. It is also known that Trump asked for magnetometers to be removed at his rally on January 6th so that those with weapons could enter.  

What could this mean for Trump’s 2024 election campaign?  

Though, as previously mentioned, the US constitution does not prohibit someone from running for president whilst convicted of criminal charges or even imprisoned, the nature of one of these convictions – the Georgia indictment – could be used to argue for Trump’s ineligibility to run in the 2024 election. Certain legal experts are proposing the invocation of the previously overlooked Section 3 of the 14th Amendment to disqualify Trump from office. This amendment asserts that any elected official who “engaged in insurrection or rebellion against” the United States “or [gave] aid or comfort to the enemies thereof,” is not eligible to run for office. 

In a recent article for ‘The Atlantic’ Harvard Law Professor Emeritus Laurence Tribe and retired Conservative Federal Judge J Michael Luttig made this very case. It is more likely that this breach of the constitution could be proposed on the weaker charge that Trump “gave aid or comfort to the enemies thereof” but it could also be additionally argued that he used the violence executed by groups such as the Proud Boys to overturn the election. 

Stand back and stand by

Even if it is decided that Trump is only in breach of the latter part of the amendment, this might still be enough to bar him from office. It is now not only a question of whether America can hold Trump accountable for his call to the Proud Boys to “stand back and stand by”, but whether the nation can stand by its constitution.