Why has Donald Trump not faced charges for criminal incitement?
Donald Trump may be the most convicted man never charged in America. Several reports have revealed the Justice Department has decided not to charge him with campaign finance violations related to hush money paid to former stripper Stormy Daniels. What was touted by many experts as a slam dunk criminal charge has now joined a lengthy list of alleged crimes that were once endless nightly cable news sensations.
The disconnect between analysis and reality matters little in the media. Many of the same experts now tout the charge of criminal incitement in the Capitol riots. It is another open and shut case in their minds. For four years, they supplied a stream of allegations, all described as conclusive, to feed the insatiable appetites of the audiences. The campaign finance charge was one of the more credible claims, since former Trump lawyer Michael Cohen pleaded guilty to it. But these crimes are hard to litigate, as shown by the failed 2012 prosecution of John Edwards.
Many of these allegations were presented as reassuringly simple. Former prosecutor and Washington Post columnist Randall Eliason insisted Trump committed bribery in the Ukraine scandal. He said it is bribery “if the quid pro quo is sought with corrupt intent” and “if the president is not pursuing legitimate policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” Yet the Supreme Court has dismissed such interpretations of bribery, extortion, and related political corruption. Others think Trump committed felony bribery by fundraising for Senate Republicans when he was about to face an impeachment.
Former House counsel Norman Eisen claimed that, by not responding to Russian aggression, Trump was “colluding in plain sight” and the criminal case against Trump for obstruction of justice was devastating. Professor Richard Painter claimed a clear case of treason. Professor Laurence Tribe declared the dictation of a misleading statement about the Trump Tower meeting constituted witness tampering. Tribe has also claimed to have found evidence over obstruction of justice, criminal election violations, Logan Act violations, and extortion by Trump or his family.
Now experts believe that the speech by Trump last month was criminal incitement. Legal analyst Elie Honig said she would “gladly show a jury” his inflammatory remarks and “argue they cross the line to criminality.” Professor Richard Ashby Wilson said, “Trump crossed the Rubicon and incited a mob to attack the Capitol as Congress was in the process of tallying the Electoral College vote results. Trump should be criminally indicted for inciting insurrection against our democracy.”
Indeed, other experts were swift to repeat their certainty of yet another criminal charge. Tribe declared, “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government, preventing this peaceful transition of power and putting a violent mob into the Capitol while he cheered them on.” Bolstering such claims, District of Columbia Attorney General Karl Racine announced he was investigating Trump for a possible incitement charge.
What is strange is that there is no word of an interview, let alone a charge, for a purportedly clear crime committed over a month ago. One possible reason is that it would collapse in court. It is so much easier to claim easy prosecutions than to prosecute such made for television charges. I do not fault these experts for speculating about such a case, but many claim that prosecution would be relatively simple. That is just not true.
The problem is free speech. The remarks of Trump last month would not satisfy the test in Brandenburg when the Supreme Court said “advocacy of the use of force or of law violation” is protected unless it is imminent. Trump did not call for use of force. He told supporters to go “peacefully” and to “cheer on” his allies in Congress. He repeated that after violence erupted and told the crowd to respect and obey the police.
Racine showed how disconnected these theories are from case law. He said Trump failed to “calm them down or at least emphasize the peaceful nature of what protests need to be.” Setting aside that he did tell them to protest peacefully, his failure to calm them is not criminal incitement by omission. Trump does face ongoing liability from the same threats which existed before he became president, in the form of banking and business investigations. But the litany of crimes suggested over the last four years passed without charges, yet several experts now argue there are no free speech or legal barriers to prosecute Trump for incitement.
But there is no excuse that Trump cannot be indicted in office, which I do not believe is true, or that he would just pardon himself, which he did not do despite predictions he would. What was conveniently hypothetical can be an actual prosecution today. If there is really a strong case for criminal incitement, make it and charge Trump. However, the prosecutions could come at a cost. Unless there is evidence of direct intent, Trump is likely to prevail at trial or on appeal. He could then claim not just vindication on a criminal charge but also on his own second impeachment.
Legal analysts who exaggerate or oversimplify criminal provisions face no criminal incitement, even as the public is sent into a frenzy with claims of slam dunk charges or easy prosecutions. People are addicted to rage and such ideas, even if illusory, feed this addiction. It is all entertainment until someone tries to prosecute, and that is when reality sets in.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.