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Ordinarily one cannot be held criminally liable for what one fails to do. But criminal law does recognize liability for one’s omissions when one has a legal duty to act. For example, parents can be prosecuted for failing to protect their children because parents owe a duty of care to their children.
The president has a sworn duty to preserve, protect, and defend the Constitution of the United States, a duty that in this case required him to immediately and unequivocally discourage his most ardent supporters from committing insurrectionary crimes once he realized they were occurring. Trump’s violation of that duty by failing to act makes him an accomplice to those crimes if he intended by that omission to assist or encourage those crimes. A strong case already exists that the president wanted his supporters’ insurrectionary crimes to continue in order to change the result of the election or at the very least obstruct the certification of his defeat. Recent press reports suggest that even stronger evidence might come to light. That intent, coupled with his oath of office, makes him an accomplice to those crimes if his supporters were even slightly encouraged by his inaction.
We do not yet know much about what Trump said or did in the White House while the Capitol riot was ongoing, although some press reports suggest he was lobbying senators by phone to vote his way for the election results and delaying deploying resources to quell the insurrection. Facts already known make clear that he violated these duties of protection, however. His supporters invaded the Capitol shortly after 2 p.m. Trump did not ask his supporters to leave the Capitol until 4:17, more than two hours after they first overwhelmed the Capitol Police. His 4:17 p.m. video message also repeated many of the lies about the election that motivated their crimes in the first place, pouring more gasoline on a fire that he was supposedly asking people to extinguish.
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