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If Trump is Indicted for the Jan. 6th Attack, It Cannot be Based on his Speech That Day

SAUL LOEB/AFP/Getty Images

With the disclosure by former President Donald Trump that he received a letter informing him that he is a target of the Justice Department’s probe into the January 6th riots and may soon be indicted, questions arise about what charges he may face.

If Trump is charged with inciting violence based solely on his speech at the National Mall, that will not be enough both factually and legally.  Where is the evidence that Trump intended for demonstrators to breach security at the Capitol Building, attack police, threaten lawmakers, and destroy property?  It cannot be found anywhere in his words that day.  Watch the speech.  At no time did Trump encourage imminent violence or advocate harm.  Importantly, that is the established Constitutional standard.

In the seminal case of Brandenburg v. Ohio (1969), the U.S. Supreme Court ruled that speech advocating illegal conduct is protected by the First Amendment unless the speech is likely to incite “imminent lawless action.”  As the high court noted, the doctrine of incitement rests on the speaker’s “specific intent,” not how the listener may interpret —or misinterpret— his words.

While Trump encouraged the audience to let their “voices be heard,” he cautioned them to behave peacefully.  That distinction is something that the mainstream media has routinely ignored.  Members of the partisan J-6 Committee, as well as Democrats in Trump’s second impeachment trial, deliberately omitted his “peaceful” remarks in their cleverly edited video presentations that were, themselves, incendiary.

Also, consider Trump’s use of the terms, “fight” and “fight like hell,” in his speech.  Heard in context, they were clearly figurative, not literal.  Indicative of hyperbole, they are words and phrases employed all too often by politicians —including nearly every Democrat in the U.S. Senate— as we saw in an impeachment video played by the defense during the trial.  Joe Biden used the word “fight” repeatedly.  Sen. Elizabeth Warren uttered it more than 50 times.  Vice President Kamala Harris invoked “fight” close to 70 times as a senator.

Never has this nomenclature constituted grounds for prosecution because it’s so ubiquitous in the sport of political discourse.  Ginning up emotion and outrage is found nowhere in the criminal codes.  Moreover, notable Democrats have hurled heated rhetoric that is far uglier and more incendiary than anything Trump said on January 6th.  There are reels of videotape to prove it.  Some even wished aloud that they could punch Trump in the face.  Biden openly envisioned beating him up.  Distasteful, but not criminal.

It is unlikely that Trump’s speech, by itself, can sustain an indictment.  As a result, some have claimed that he condoned the Capitol violence after the fact by not voicing more forcefully an immediate condemnation.  Legally, that’s an absurd argument because it does not constitute a crime under our set of laws.  If it did, Democrats might have been charged for failing to denounce Antifa and BLM violence during the “summer of rage” in 2020.  Judging by their conciliatory comments at the time, many of them seemed to approve of the deadly and destructive riots.

It is also not a crime to tell your supporters that the presidential election was either stolen or rigged, regardless of whether it is true.  In America we have a constitutional right to be wrong and to express mistaken beliefs.  Disagreeable speech is permissible, just as hateful speech is fully protected speech under the First Amendment.  Let’s not forget that both Hillary Clinton and Nancy Pelosi publicly challenged the integrity of a prior election by also claiming that it was stolen.

With his encouragement, Trump’s congressional allies launched a concerted, albeit futile, effort to contest the 2020 result by challenging the Electoral College count and certification before the House and Senate on Jan. 6, 2021.  This is perfectly permissible under the Electoral Count Act.  Democrats used the identical tactic to try to deprive Trump of the presidency four years earlier.  It is not a lawless attempt to subvert an election or defraud a government process, as some claim.

If Trump’s speech is not the gravamen of an indictment, what is?  Is there some heretofore unknown evidence that he schemed with others to commit an insurrection?  You’ll recall that the FBI found scant evidence that the assault on the U.S. Capitol was an organized plot to overthrow the government, although some attackers planned their actions days and weeks in advance.  Unless special counsel Jack Smith has uncovered some incriminating evidence linking Trump directly to a “seditious conspiracy,” the government may be hard pressed to bring an indictment on that basis.

The hard but obvious truth is that Americans who committed violence at our nation’s Capitol that terrible day are to blame for their grotesque and despicable acts.  There will always be people crazed with anger.  Whether Trump is legally culpable is a very different question.

In the absence of more information, we must wait to learn whether the former president is again indicted and on what charges.