Proving this claim requires more than reckless rhetoric

Jacob Sullum

After Donald Trump’s second impeachment trial acquittal, Senate Minority Leader Mitch McConnell (R-Kentucky) has suggested the former president could still be held civilly or criminally liable for his role in the Capitol riot which happened a year ago last Thursday. But as three lawsuits a federal judge considered this week show, those options require proving that Trump deliberately instigated the violence that day is a tall order.

Trump supporters who stormed into the Capitol, interrupting the counting of the presidential election results in Congress, came to Washington, DC, at his request. They were driven by Trump’s fantasy of a stolen election, which he had promoted for months and reiterated in a fiery pre-riot speech at a rally a mile and a half from the Capitol.

“I know everyone here will soon be marching to the Capitol building to peacefully and patriotically raise your voice today,” Trump said. If he did not advocate violence, it was foreseeable that at least some of his supporters would interpret his exhortation to “fight like hell” in defense of a democracy allegedly in danger as a justification for the use of strength.

Yet there’s a big difference between the reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in the lawsuits filed by Rep. Eric Swalwell (D-California), other House Democrats and two police officers. of the Capitol. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force and intimidation to prevent government officials from carrying out their duties.

To prove this claim, plaintiffs must do more than show that Trump angered his supporters with false allegations of voter fraud, or even that he did so in circumstances where he should have known that the violence was likely. They must show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Biden’s victory, a scheme in which Trump himself intentionally participated.

Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a DC Code provision that “makes it a criminal offense to willfully incite or urge others to riot “. In addition to the requirement that the offense be committed “willingly”, prosecutions for incitement are limited by the First Amendment.

Even the defense of unlawful conduct, the Supreme Court ruled in Brandenburg v. Ohio in 1969, is constitutionally protected unless it is not only “likely” to incite “imminent unlawful action”, but also “directed” to do so. Another exception to the First Amendment, for “genuine threats”, involves “statements where the speaker intends to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals “.

In a brief supporting Swalwell’s lawsuit, three law professors, joined by legendary First Amendment lawyer Floyd Abrams, say those exceptions “probably apply here.” But whether that is the case depends on what we assume Trump was thinking when he delivered his speech.

Trump explicitly urged Mike Pence, for example, to reject electoral votes for Biden, a power the vice president didn’t actually have. But Trump did not threaten Pence with “an act of unlawful violence,” and inferring such a threat requires speculation about what Trump meant in light of what his supporters did afterward.

Nor is it at all obvious that Trump intended to riot, an outcome that fell short of his ostensible goal, led to his second impeachment, and drew heavy criticism from Republican lawmakers such as McConnell. If this was all part of a plan, it was a pretty stupid plan.

The urge to punish Trump for his reckless rhetoric is understandable but dangerous. If his opponents are successful, they might regret setting a precedent that speakers who neither practice nor preach violence can be held legally responsible for the conduct of listeners inspired by their words.

Jacob Sullum is editor of Reason magazine. Follow him on Twitter: @JacobSullum. To learn more about Jacob Sullum and read articles by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at

This article originally appeared on St. George Spectrum & Daily News: Hard to Prove Trump’s Claims of Instigating Capitol Riot are Hard to Prove

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