Proving in court that Trump intentionally incited violence on January 6 is a high order – Orange County Register

After Donald Trump’s second impeachment trial ended in acquittal, Senate Minority Leader Mitch McConnell, R-Kentucky, suggested that the former president could still be held civilly or criminally liable for his role in the Capitol riots that occurred a year ago. But as three lawsuits that a federal judge reviewed last week showed, those options require proof that Trump intentionally incited violence that day, which is a tall order.

Trump supporters who broke into the Capitol, disrupting the congressional count of the presidential election results, arrived in Washington, DC, at his behest. They were driven by Trump’s fantasy of a stolen election, which he promoted for months and repeated in a fiery riot speech at a rally a mile from the Capitol. half.

“I know that everyone here will soon be marching to the Capitol to express your voice peacefully and patriotically today,” Trump said. Although he does not support violence, it is foreseeable that at least some of his supporters will interpret his exhortations to “fight like hell” in defense of a supposedly violent democracy. force as a justification for the use of force.

However, there is a big difference between the reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in the lawsuits by Representative Eric Swalwell, D-California, parties. other House Democrats and two Capitol Police officers. 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 performing their duties.

To back up that claim, the plaintiffs had to do more than point out that Trump has infuriated his supporters with false election fraud claims, or even that he did. so in cases where he could have been violent. They had to prove that the Capitol riots were the culmination of a plan to grossly disrupt Joe Biden’s ratification of victory, a scheme in which Trump himself had deliberately participated.

Capitol Police officers James Blassingame and Sidney Hemby also argued that Trump violated a provision of the DC Code that “makes it a criminal offense to knowingly induce or induce others to participate in a riot. ” In addition to the requirement that the offense be committed “willfully,” the prosecution of solicitation is also bound by the First Amendment.

Even justifying illegal behavior, the Supreme Court ruled in Brandenburg v Ohio in 1969, is constitutionally protected unless it is not only “likely” to incite “unlawful action.” imminent” but was “directed” to do so. Another First Amendment exception, for “genuine threats,” concerns “statements in which the speaker wishes to convey a serious expression of intent to commit violence.” unlawful force against a particular individual or group of individuals”.

In a brief backing of Swalwell’s case, three law professors, along with legendary First Amendment attorney Floyd Abrams, said that these exceptions “may apply here.” But does that hinge on what we surmise Trump was thinking when he delivered his speech.