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Gabriel Powell: Trump is not respon­sible for the lawlessness

The violent riot that occured at the U.S. Capitol on Jan. 6 was rep­re­hen­sible and tragic. Any indi­vidual who par­tic­i­pated in this assault should be inves­ti­gated and pros­e­cuted to the fullest extent of the law. But that is where the pros­e­cu­tions should end.

The pros­e­cu­tions shouldn’t include former Pres­ident Donald Trump, who has been accused of inciting an insurrection. 

Given the First Amendment’s pro­tection of free speech, laws that penalize speech must be nar­rowly tai­lored. Federal law defines incitement to riot as “urging or insti­gating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief.” The Supreme Court, in Bran­denberg v. Ohio, added that restric­tions upon free speech are not per­mis­sible “except where such advocacy is directed to inciting or pro­ducing imminent lawless action and is likely to incite or produce such action.” Incitement must include spe­cific instruc­tions to act. The Court estab­lished the Bran­denberg test, which requires that speech must both be directed towards the pro­duction of imminent lawless behavior, and that the speech be likely to actually incite such lawless action.

Trump’s speech on Jan. 6 does not meet the standard for incitement. At no point did Trump make a spe­cific call to action that sought to produce “imminent lawless action.” To the con­trary, he expressed a desire for the opposite, saying early in his speech, “I know that everyone here will soon be marching over to the Capitol building to peace­fully and patri­ot­i­cally make your voices heard.” 

Unfor­tu­nately, a small fraction of the crowd breached the Capitol, with some even assaulting federal law enforcement and looting. Yet at least some of those who stormed the Capitol already intended to do so regardless of what Trump said, as they came equipped with helmets, gas masks, hammers, and other gear. In fact, CNN, ProP­ublica, and other sources have reported there is now evi­dence not only that the riot had been planned for weeks in advance, but that law enforcement had prior warning, with some plots going as far back as November. Fur­thermore, as cited in the New York Times’ timeline of the day, the assault on the Capitol began 20 minutes before Trump had even fin­ished his speech. If the intention of the rioters had been to hear Trump, they would not have been else­where while he was still speaking.

Trump’s speech can hardly be said to have incited a pre-planned riot that was underway before the very speech that sup­posedly incited it had even con­cluded. At no point in his speech, or in his tweets prior to the event, did Trump make any spe­cific call for imminent lawless action. His tweet telling the rioters to stand down acknowl­edged that some of them may have legit­imate con­cerns about the election, yet instructed them to “go home in peace.” An accu­sation levied against Trump for inciting the Jan. 6 riot would create a standard so broad that it could be used to accuse nearly anyone of inciting vio­lence, thereby destroying free speech and indi­vidual responsibility.

Gabriel Powell is a sophomore studying politics.

 

Josh Barker: Trump’s lies incited the vio­lence at the Capitol

“Will be wild.” 

That’s what former Pres­ident Donald Trump tweeted in advance of his rally on Jan. 6. Wild it was. The chaotic infil­tration of the Capitol — including the beating and mur­dering of police plus the theft of com­puters with national security details — all hap­pened with the goal of intim­i­dating Congress. 

Trump falsely told his sup­porters that Con­gress could vote to overturn the elec­toral votes from enough states so the election would be thrown to the House and then the House could vote him as the pres­ident. This was all based on the lie that the election was stolen. 

Trump didn’t just claim there was evi­dence of fraud or wrong­doing, but that he had won “a land­slide election.” The evi­dence just hasn’t shown that. The Dominion Voter Machine con­spiracy has no facts behind it. Trump’s lawyers never argued for sys­temic voter fraud in court or even in pre-trial hearings. One attorney told a judge in court, “We are not alleging fraud in this lawsuit. We are not alleging anyone stealing the election.”

In another case, a judge wrote that the attorneys “specif­i­cally stip­u­lated in their com­pre­hensive stip­u­lation of facts that there exists no evi­dence of any fraud, mis­conduct, or any impro­priety with respect to the chal­lenged ballots.” 

Trump sum­moned his crowd to demand that Con­gress overturn an election it had no right to overturn. “We’re going to walk down to the Capitol, and we’re going to cheer on our brave sen­ators, and con­gressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

Less than a week in advance, he reposted a supporter’s tweet that said “The calvary [sic] is coming, Mr. Pres­ident! JANUARY 6th.” Trump spent weeks stoking the fury of his sup­porters, rid­dling his tweets with aggressive lan­guage like “fight” and being “strong.” His refusal to denounce the QAnon con­spiracy only helped the ten­sions rise. 

When Trump finally con­demned the vio­lence, he didn’t show strength but weakness. In a video telling pro­testers to go home, he began by telling the rioters: “I know your pain, I know you’re hurt.” He ended by telling them “We love you. You’re very special.” 

Even after vio­lence, even after deaths, in that video he repeated the lies: “It was a land­slide election and everyone knows it, espe­cially the other side. There’s never been a time like this where such a thing hap­pened where they could take it away from all of us.”  He was right about one thing, though: It was wild.

Josh Barker is a sophomore George Wash­ington Fellow studying politics.