(Politico)Donald Trumpís hours of silence while a violent mob ransacked the Capitol ó egged on by his own words and tweets ó could be plausibly construed as agreement with riotersí actions, a federal judge suggested Monday.
U.S. District Judge Amit Mehta made the analysis as he pressed Trumpís lawyers about their efforts to dismiss a series of lawsuits against the former president seeking to hold him financially liable for inciting the Jan. 6 insurrection.
ďWhat do I do about the fact the president didnít denounce the conduct immediately?Ē Mehta wondered, homing in on a central focus of congressional investigators probing Trumpís conduct that day. ďIsnít that, from a plausibility standpoint, enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?
Mehtaís questioning prompted Trumpís attorney, Jesse Binnall, to push back, forcefully arguing that Trump canít conceivably face legal consequences for actions he did not take.
ďThe president cannot be subject to judicial action for any sort of damages for failing to do something,Ē Binnall said.
I believe Binnall is incorrect. First because the case is a civil case. In civil cases there is an "apportionment of responsibility". If the defendant is negligent, even partially negligent, the jury allocates fault, usually as a percentage.
Secondly, Binnall is wrong because inaction can be a crime. There is a lower bar in civil court than criminal court for the defendant to found responsible and punished.
When Inaction Becomes Criminal
(Lexology)"Where a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the otherís life will normally arise."
A recent example of people being charged for their inaction happened recently in Oxford, Michigan, the site of school shooting.
The shooter's parents, James and Jennifer Crumbley, are facing charges of failing to perform their parental duties. They ignored warning signs that their son was mentally ill and dangerous. They failed to tell school authorities that their son was armed with a pistol.