Why Trump could face criminal charges for inciting violence and insurrection
A key issue in any Department of Justice (DOJ) investigation of President Trump for inciting violence and insurrection will be whether the evidence satisfies the standard in Brandenburg v. Ohio. There, the Supreme Court held that the First Amendment does not protect speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Based on the available information, it’s possible to frame a working theory for the investigation of how Trump and others intentionally incited “imminent lawless action.” The theory is that the attack on the Capitol was the intended outcome of a months’ long campaign by Trump and his allies to stoke rage among Trump supporters with lies that the election had been stolen. The campaign culminated in Trump’s speech on Jan. 6 in which he intentionally incited a mob to attack the Capitol just as Congress was confirming the Electoral College vote for Biden.
In the first phase of this campaign, according to one timeline, between Election Day and the Jan. 6 rally, the president, his family, his lawyers and allies posted 200 false claims on Twitter about election fraud, which were retweeted more than 3.5 million times, and liked more than nine million times. Their rhetoric grew increasingly violent as courts rejected the Trump campaign’s legal challenges to the election.
In mid-November, Trump attorney L. Lin Wood told a Trump rally in Georgia, “We’re going to slay Goliath, the communists, the liberals, the phonies. Joe Biden will never set foot in the Oval Office.”
In early December, another Trump attorney, Sidney Powell, told a Twitter user to “swarm the state capital, Congress.” On Jan. 1, Rep. Louie Gohmert (R-Texas) told a conservative media outlet that the rejection of Trump’s legal challenges meant that “you got to go into the streets” and be “violent.”
Trump, who has a history of using veiled and not-so-veiled threats of violence to intimidate opponents, urged his followers to go to the Jan. 6 rally and promised them that the rally “will be wild.” He told a crowd in Georgia, “They’re not taking this White House. We’re going to fight like hell.” The term “Storm the Capitol” was repeated 100,000 times on social media in December and early January.
The Jan. 6 rally, under the working theory, represented Trump’s last chance to overturn the election before Biden’s inauguration. At the rally, Rudolph Giuliani told the assembled crowd, which included white nationalists, QAnon adherents and rightwing militia members, “Let’s have trial by combat.” Donald Trump, Jr., said of Republicans who were not supporting his father, “we’re coming for you and we’re going to have a good time doing it.”
In his one-hour address, Trump suggested that Vice President Mike Pence might be in danger if he didn’t block the Electoral College confirmation (“What takes courage is to do nothing”). He repeated incendiary lies that the election had been stolen and told the crowd that “you’ll never take back our country with weakness. You have to show strength.” While Trump said once in passing that the crowd should be peaceful, he used the words fight or fighting 20 times (“If we don’t fight like Hell, we are not going to have a country anymore.”) and told the crowd that “very different rules” now applied.
The incitement to imminent violence occurred when Trump told the crowd to march on the Capitol. He didn’t need to explicitly say that they should attack the Capitol because his and the others’ lies about election fraud and their violent metaphors at the rally had deliberately turned them into a frenzied mob bent on a violent rampage. Some appeared to chant “Hang Mike Pence.”
After the attack began, under the working theory, Trump incited the rampaging mob even further and expressed approval for what they had done. Thus, while the attack was underway, Trump tweeted that Pence, who was in the Capitol, “didn’t have the courage” to block the Electoral College proceedings, which might have put Pence in greater jeopardy.
About 45 minutes into the attack, Trump tweeted that his followers should “stay peaceful,” but he did not ask them to leave the Capitol. That only happened more than two hours after the attack began when Trump was under pressure to stop it. He later had this to say to the thugs who had desecrated a historic building where American parents proudly take their children: “we love you. you’re very special.” Trump’s post-rally praise for the violent mob further proves his criminal incitement in telling them to march on the Capitol.
If all the evidence uncovered in a thorough investigation supports this theory, then criminal charges against Donald Trump, from inciting a riot to seditious conspiracy and inciting insurrection, may well be justified.