June 17, 2022

Joe Scarborough wants to know what it would take to get Trump charged with seditious conspiracy.

"I mean, the morning after, on January 7th, I think I read it on the show, Federal code section 2384, seditious conspiracy. 'If two or more persons in any state or territory, any place subjected to the jurisdiction of the United States, conspired to overthrow, put down, or destroy by force the United States or levy a war against it or to oppose by force the authority thereof, which they were trying to do, or to delay the execution of any law of the United States," he said.

"Let me say that again. Or if their intent is to delay the execution of any law of the United States or by force to seize, take, possess any property, they'll be guilty of a conspiracy to commit sedition. This is -- I mean, my God, if any of us were given this fact pattern in criminal law, our first year in law school, and if any of us wrote, oh, no, no, this doesn't fit the four corners of this statute, our criminal law professor would give us an F. This is basic stuff. From there, let's move on to John Eastman. What in the world does John Eastman have to do to be charged? Like, it is really -- this is -- what he is doing is not just beyond the pale, not just un-American, it's illegal."

"Joe, let me tell you the only caveat, right?" Rosenberg said.

"So the statute you read from, 18 us-c 2384, the seditious conspiracy statute, requires that somebody who thwarts Congress or attempts to hinder the -- hinder a law or delay the vote intended, intended the use of force. Now, we saw what the president did, we know what he said. You're getting closer and closer and closer, as Jonathan and I discussed, but you have to intend force. That's hard to show. It's not hard to show that Eastman's advice was idiotic or the president pressured Mike Pence.

"What about Eastman, when confronted about violence: 'Yeah, violence happens in the United States,'" Scarborough argues.

"What happens with Donald Trump saying you've to be tough, not soft. What about Don Jr. saying, we're coming to get you? What about Rudy Giuliani talking about combat justice? What about evidence time and time again that these people were over at a hotel right by the White House conspiring, and you have Steve Bannon talking about how all hell is going to break loose tomorrow? They are saying, it's coming. the storm is coming. eastman is even saying, yeah, i know this could lead to violence, just happens. Shit happens. Violence happens. What are you going to do about it?"

Rosenberg said you have to individually show his intent. "I think you're getting closer and closer. I don't know that that statute in the end, seditious conspiracy, is the one," he said.

"Look, if they charge him at all, I think there are easier ways to charge him. For instance, a conspiracy to impede and impair the lawful functioning of the Congress and the government of the United States. For example, an obstruction of Congress. Neither of those two statutes require proof of intent of force. You're right in the way you characterize the evidence. You're right in the way that you remember it.

"All those things are important, and all of those things get you closer. But we talk as former federal prosecutors with each other, and the thing that many of us get hung up on is whether or not you can show that the president intended force. I think you're getting closer. I don't think it is depositive yesterday. We don't know 99% of what the committee collected, and we don't know what the Department of Justice collected.

"I often tell people, be patient. There's more. We have a lot to learn," he concluded.

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