Conspiracy by Capitol attackers does not rule out incitement

Premeditation by the insurrectionists does not let Trump off the hook

One of the recent arguments that I’m hearing a lot from President Trump’s supporters is that he couldn’t have incited the riot because there is evidence that members of the mob had planned the attack on the Capitol in advance. This is a fallacy for several reasons, but a key point is that both statements could be true at the same time. Evidence of pre-planning does not mean that Trump could not have incited the attack.

The argument is based upon a Washington Post report that three US veterans with ties to the Oath Keepers had been indicted on counts that included a conspiracy for a group of 30-40 militants who would be “sticking together and sticking to the plan” during the invasion of the Capitol. Per the indictment, planning for the operation began as early as Nov. 9, only six days after the election, with the idea of gathering recruits for a “basic training” session in Ohio in order to be “fighting fit by innaugeration [sic].”

Because there is evidence that some of the radicals in the crowd came to Washington already planning to attack the Capitol, President Trump could not have incited the attack, or so the theory goes. But there are problems with this line of reasoning.

The most glaring error is that incitement does not have to be spontaneous. Federal law makes it illegal to “solicit[s], command[s], induce[s], or otherwise endeavor[s] to persuade such other person” to use “physical force against property or against the person of another in violation of the laws of the United States.” The law does specify that the speaker must have “intent that another person engage in conduct constituting a felony,” but there is no language that places a time limit between the speech and the criminal act.

In other words, President Trump’s speech on the morning of January 6 would not have to be the proximate cause of the incitement. The crowd could have been incited by calls to “stop the steal” days, weeks, or even months earlier. In fact, the single Article of Impeachment refers to President Trump’s "prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.”

Although the Article cites only Trump’s phone call to Georgia Secretary of State Brad Raffensperger, the former president’s pattern of behavior since the election is one of repeated attempts to overturn the election results and cast doubt on the integrity of the election.

Trump even laid the groundwork for his attack on the election long before November 3. In the months leading up to the election, the president undermined the integrity of the election with spurious allegations about the lack of security of mail ballots, telling supporters in August, “The only way we're going to lose this election is if the election is rigged.” This was at a time when Trump trailed Biden by more than five points and had never led in the polling average.

We also know that Donald Trump personally summoned his supporters to Washington ahead of the Congress’s special session to count the Electoral College vote. In multiple now-deleted tweets, such as one from January 1, Trump promoted a “BIG Protest Rally… in Washington, D.C. at 11.00 A.M. on January 6th.” This tweet followed another from December 19 when Trump tweeted that the gathering in DC would be “wild.”

It’s an open question why Trump would call his supporters to DC on the day of the electoral vote count for a “wild” time if he didn’t want them to disrupt the constitutional transfer of power. The January 6 date, in the middle of the week, was hardly random.

Finally, we know that many of the people who took part in the insurrection believed that they were answering Trump’s call. Just Security has put together a 10-minute video of the Trump-supporting insurrectionists, interspersed with the president’s comments at the rally that morning. The attendees freely say that they are ready to go to war for Donald Trump. Many of the public indictments of the insurrectionists (and the legal documents do use that term) also document the claims of the perpetrators that they were answering Trump’s call.

Trump’s admonition in his rally speech to “peacefully and patriotically make your voices heard” is balanced with allegations of election theft and phrases like “If you don’t fight like hell, you’re not going to have a country anymore.”

It is true that politicians often urge supporters to fight to elect them or to fight for an issue, but context matters. When a politician tells his supporters that the election was stolen and that their country is being taken from them, the word “fight” takes on a different, more literal meaning. A politician who tells his supporters to fight like hell or they will lose their country to fraud should expect exactly what Trump got on January 6.

Further, there is circumstantial evidence that Trump was pleased with his handiwork. There are anecdotal reports that the president was “pleased” and “excited” by the violence at the Capitol. We also know that Trump resisted calling out the National Guard and that Vice President Pence, himself a target of the mob, had to take the initiative to call in reinforcements for the overwhelmed Capitol Police. We also know that Trump expressed his love for the insurrectionists in both a tweet and a video.

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Much has ink has been spilled since January 6 regarding the Brandenburg test for incitement, which requires that the offending speech be both “directed to inciting or producing imminent lawless action,” AND “likely to incite or produce such action.”  It isn’t clear that Trump would be convicted of incitement if the case went to court, but it’s equally unclear that he would be acquitted. There are respected legal minds on both sides of the case. For that reason, I typically refer to Trump’s actions as a “provocation” rather than “incitement.

What is clear, however, is that Trump spent months provoking this violent reaction from his base. His attacks on mail ballots and claims of fraud, both of which have been thoroughly debunked many times, were deeply irresponsible and dangerous. There were many warnings (including a pre-election piece that I wrote for the First) that such rhetoric would inevitably lead to violence.

So, the bottom line is that the fact that at least some of the insurrectionists conspired and planned a premeditated attack on the Capitol does not let Donald Trump off the hook. Even before the election, Trump was stoking the base’s anger and undermining their faith that the election would be free and fair. Months upon months of allegations that votes were being shredded and elections were being stolen could lead to only one outcome.

Whether Trump committed a criminal act of incitement is debatable, but the fact that there is a straight line between Trump’s bad behavior and the attack on the Capitol is not. Trump’s malfeasance is within the constitutional and historical bounds of impeachment and he should be disqualified from holding office in the future.

The supreme irony, then, is not that he will be acquitted by the Senate. This was always the most likely outcome given Trump’s continued stranglehold on the Republican Party and the partisan and incompetent handling of the impeachment process by House Democrats. No, the irony is that thanks to the tribal nature of politics, it would be easier to get an incitement conviction in a criminal court, despite the higher burden of proof, than to get 17 Republicans to vote against Trump.

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