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.