The pros and cons of charging Trump with incitement to violence

Donald Trump in 2016. Photo (cc) by Gage Skidmore.

Suzanne Nossel, the chief executive of PEN (Poets, Essayists and Novelists) America, is concerned that the second impeachment of Donald Trump could be used to weaken the legal standard for convicting someone of incitement to violence. I differ with her New York Times op-ed, and in fact I think criminal charges could be brought against Trump without doing any harm to the First Amendment.

Nossel, a lawyer, rightly differentiates between the impeachment proceedings, which are based on a layperson’s definition of incitement, and the legal definition. By any reasonable measure, Trump whipped a mob into a frenzy on Jan. 6 and pointed it in the direction of Capitol Hill, a reckless action that led to five deaths, including that of a police officer.

The legal standard, as Nossel explains, is much more narrow, based on the 1969 case of Brandenburg v. Ohio, in which a Ku Klux Klan leader, Clarence Brandenburg, was convicted of incitement under Ohio state law after telling those attending a rally that they should take “revengeance” upon Black and Jews. The Supreme Court overturned the conviction, ruling that Brandenburg’s threat wasn’t imminent or specific enough.

The Brandenburg decision was the culmination of a series of court rulings going back to Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. offered his famous metaphor that the law does not protect falsely shouting “fire” in a crowded theater. The standard the court arrived at was that speech could be banned if it presented a “clear and present danger.”

The Schenck decision is often reviled as repressive today, but it was a step forward at the time. For the next 40 years, the court sought to refine and narrow what was meant by a clear and present danger, finally arriving the Brandenburg standard. As Nossel explains, the legal definition of incitement is based on the idea that the language in question was intended to cause violence; that the threat of violence must be imminent; and that the language must be likely to result in violence.

I read the transcript of Trump’s remarks, and it seems to me that they could support an incitement conviction. First of all, there is the context. Trump lies, at great length and in fine detail, about the outcome of the election. You’ve heard it all before, but right near the beginning he says this:

All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.

Now you might say Trump actually believes this. But over the weekend it was reported that Trump, in the White House, has railed about his defeat with associates. According to Axios, he has gone so far as to say, “Can you believe I lost to that fucking guy? That fucking corpse?” So he knows. He’s lying. And though that lie doesn’t amount to incitement, it prepares the crowd for what follows.

The most incendiary language comes at about the 18-minute mark:

After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going 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. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

Trump immediately follows up with what could be considered exculpatory language: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But we’ve heard him do this many times over the years. If you’re on the jury, would you let him off the hook because, in course of an hour-long speech aimed at stirring up a frenzy, he used the word “peacefully” — once?

Later in his speech, he says, “We got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them. We got to get rid of them.” Again, maybe there’s just enough ambiguity here — that sentence is preceded by “a year from now, you’re going to start working on Congress.” That sounds like he could be referring to primary challenges. But Cheney and other Republicans who voted for impeachment are receiving death threats, The Daily Beast reports, and it’s hard to make the case that Trump’s words didn’t have more than a little something to do with it.

I think we also need to keep in mind that Trump took part in a rally at which his son Donald Trump Jr. and one of his lawyers, Rudy Giuliani, spoke even more recklessly than he did. Giuliani spoke of a “trial by combat,” which he ludicrously claimed later was a reference to “Game of Thrones.” Trump Jr., among other things, said:

It [the gathering on the National Mall] should be a message to all the Republicans who have not been willing to actually fight, the people who did nothing to stop the steal. This gathering should send a message to them: This isn’t their Republican Party anymore. This is Donald Trump’s Republican Party.

Again, Junior could, at least in theory, have been referring to primary challenges. But he was speaking to an angry mob, not a gathering of precinct captains. We have to look at what he had to know the effect of his words would be. There’s no reason we have to interpret what he said in a light most favorable to him.

In other words, it’s possible that Giuliani and Trump Jr. could be in legal jeopardy. And it’s also possible that a jury could use what they said to clarify the president’s own statements.

Would it be wise to prosecute Trump for incitement once he’s out of office? Probably not. This is a close enough call that there’s a good chance he’d be acquitted, which would make the case against him look like a politically motivated attack by his enemies. The best route, it seems, is to hope that the Senate convicts him by the necessary two-thirds vote followed by banning him from holding office in the future, which only requires a majority.

In any case, a possible incitement prosecution is likely to be the least of Trump’s concerns once the clock hits 12:01 p.m. on Wednesday. He faces financial ruin and endless legal problems, both civil and criminal. If he pardons himself, that will be challenged in court. If he prevails, he still faces trouble in a number states, which are not bound by a federal pardon.

But an incitement prosecution is an interesting thought exercise. It could well be that Trump went further than Clarence Brandenburg, sheets and all, in unleashing mob violence. That’s quite a distinction.

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Trump’s five years of incitement finally reach their logical end point

I half-expected to wake up this morning hearing martial music on the radio and an announcement from the Joint Chiefs of Staff that President Pence would be speaking soon.

Instead, Donald Trump is still president. In the early-morning hours, he finally conceded the race and promised an orderly transition of power to Joe Biden, though he refused to abandon his false assertion that he actually won the election — a toxic lie that led directly to Wednesday’s insurrection.

What led Trump to back down? We can be pretty sure what it wasn’t. Even the rioting and the fatal shooting of a Trump supporter in the Capitol weren’t enough to stop him from releasing an incendiary video in which his call for calm was completely overshadowed by his words of support for the insurrectionists. It was so horrifying that Twitter and Facebook both took it down.

It seems more likely that Trump’s change in tactics came as the result of what The Washington Post described as serious talk among “some senior administration officials” to invoke the 25th Amendment and remove him from office before his term expires on Jan. 20. Something like that may have begun Wednesday evening, when Vice President Pence but not Trump was consulted on whether the National Guard should be called out — a clear violation of the chain of command, but understandable under the circumstances.

Trump should be removed anyway. As we saw Wednesday, he is far too dangerous to leave in power even for another day. “The president needs to be held accountable — through impeachment proceedings or criminal prosecution — and the same goes for his supporters who carried out the violence,” The New York Times editorialized. The Post called for Trump’s removal under the 25th Amendment, arguing: “The president is unfit to remain in office for the next 14 days. Every second he retains the vast powers of the presidency is a threat to public order and national security.”

Naturally, the radical Republicans who continue to support Trump are pointing their fingers at anyone but themselves. Fox News’ Laura Ingraham, Brit Hume and others have tried to blame the violence on left-wing infiltrators from antifa groups, an absurd and offensive proposition for which there is zero evidence. As Molly Ball of Time magazine put it, “The amazing thing about ‘it might have been antifa’ is that Trump literally summoned these people to DC, spoke at their event, offered to walk them over to the Capitol and then praised them afterward.”

One of the more interesting questions today is whether Trump might face criminal charges for inciting violence, as the Times editorial suggests. Of course, Trump has been inciting his followers for months — for years, even. But the key to criminal charges would be the speech he delivered to the mob shortly before it began its rampage through the Capitol.

According to the Times’ account of his speech, he did not explicitly call for violence, although he indulged in incendiary rhetoric such as “you will never take back our country with weakness.” On the other hand, Rudy Giuliani called for “trial by combat” and Donald Trump Jr. — speaking of Republican members of Congress who were not supporting the effort to overturn the election — said, “We’re coming for you.”

An investigation might well conclude that they had crossed the line, and of course it was the president himself who was aiding and abetting such calls. “There’s no question the president formed the mob,” the Times quoted U.S. Rep. Liz Cheney, R-Wyo., as telling Fox News. “The president incited the mob. The president addressed the mob. He lit the flame.”

There’s so much more that we need to know. I’ve heard a lot of criticism that the police essentially enabled the violent Trumpers just months after a massive show of force put down Black Lives Matter rallies. From what I’ve seen, the problem Wednesday is that the police were vastly outnumbered. An overly aggressive response in such a situation could have led to an even greater disaster. But why were they outnumbered? Why was the planning for Wednesday so poor given that we all knew a Trumper mob was descending upon the city?

Needless to say, we also need to know more about Ashli Babbitt, the Air Force veteran and Trump supporter who was fatally shot inside the Capitol, reportedly by a Capitol Police officer. Three others also died after experiencing “medical emergencies, according to reports.

Wednesday was a day that will live in infamy as five years of Trump’s inflammatory rhetoric reached its logical end point. “What happened at the U.S. Capitol today was an insurrection, incited by the President of the United States,” said Sen. Mitt Romney, R-Utah.

What we need, I suspect, is a new conservative party untainted by Trumpism and led by people of conscience like Romney. The notion seemed absurd even a few days ago. But just as the Republicans supplanted the Whigs in the 1840s and ’50s, it may be time for the Republicans to be supplanted by a party committed to principle and democracy.

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Conspiracy Nation: Why Trump Jr.’s smear of Biden was even worse than it seemed

WGBH News illustration by Emily Judem.

Previously published at WGBHNews.org.

Over the weekend, Donald Trump Jr. posted a shockingly offensive message on Instagram claiming that former Vice President Joe Biden is a child molester. Next to an image of Biden appeared the words “See you later, alligator!” Below was a photo of an alligator with the retort “In a while, pedophile!” (No, I won’t link to it.)

Outrage came swiftly. “The dangerous and untrue charge of pedophilia is the new marker — so far — of how low the Trump campaign will go to smear Biden,” wrote Chris Cillizza at CNN.com. Jonathan Martin of The New York Times called it “an incendiary and baseless charge.” In The Guardian, Martin Pengelly said “most observers” (was that qualifier really necessary?) regarded it as “beyond the pale even in America’s toxic political climate.”

What few analysts noticed, though, was that Trump Jr.’s vile accusation, which he later claimed was a joke, lined up perfectly with a conspiracy theory known as QAnon. Bubbling out of the darkest corners of the internet, the theory claims, in broad strokes, that President Donald Trump is secretly working to destroy a plot led by the Clintons — but of course! — and other Democrats who engage in child abuse and cannibalism. And in order to defeat these malign forces we must heed the cryptic messages of Q, an insider who is helping Trump rout the forces of evil and save the world.

QAnon, in effect, is the ur-theory connecting everything from Pizzagate to paranoia about the “deep state” to regarding impeachment as a “hoax,” as Trump has put it. The Trumps have dabbled in QAnon from time to time as a way of signaling their most wild-eyed supporters that they’re on board. But there’s no exaggerating how dangerous all of this is.

We are living, unfortunately, in a golden age of conspiracy theories. Some, like Alex Jones of Infowars infamy, claim that mass shootings are actually carried out by “crisis actors” in order to give the government a rationale to seize everyone’s guns. Then there’s the anti-vaccine movement, currently standing in the way of any rational response to the COVID-19 epidemic. Indeed, a widely watched video called “Plandemic” falsely claims, among other things, that face masks make you sick and that people who’ve had flu shots are more likely to get COVID.

There’s nothing new about conspiracy theories, just as there’s nothing new about so-called fake news. Never mind the assassination of John F. Kennedy, the subject of a new, weirdly compelling 17-minute song-poem by Bob Dylan called “Murder Most Foul.” A century earlier, there were those who blamed (take your pick) Confederate President Jefferson Davis or Pope Pius IX for the assassination of Abraham Lincoln.

But conspiracy theorizing in the 21st century is supercharged by the internet, with a significant assist from Trump. Trump has indulged not just QAnon but also Alex Jones, the anti-vaxxers and all manner of foolishness about the deep state — the belief that the U.S. government is run by a shadowy cabal of bureaucrats and military officials who are seeking to undermine the president. At its heart, that’s what Trump seems to be referring to when he tweets about “Obamagate!,” a scandalous crime lacking both a scandal and a crime. And let’s not forget that Trump began his political career with a conspiracy theory that he made his own: falsely claiming that Barack Obama was not born in the United States and was thus ineligible to serve as president.

In recent days, the media have converged in an attempt to explain and debunk these various conspiracy theories. Last week, public radio’s “On the Media” devoted a segment to QAnon and “Plandemic.” The investigative website ProPublica has published a guide on how to reason with believers. The American Press Institute has offered tips for reporters. The Conversation, which brings academic research to a wider public, has posted an article headlined “Coronavirus, ‘Plandemic’ and the seven traits of conspiratorial thinking.”

By far the most ambitious journalistic effort is a special project published by The Atlantic called “Shadowland.” And the heart of it is a nearly 10,000-word article by the executive editor, Adrienne LaFrance, profiling the QAnon phenomenon and how it has infected thousands of ordinary people.

“QAnon is emblematic of modern America’s susceptibility to conspiracy theories, and its enthusiasm for them,” LaFrance writes. “But it is also already much more than a loose collection of conspiracy-minded chat-room inhabitants. It is a movement united in mass rejection of reason, objectivity, and other Enlightenment values. And we are likely closer to the beginning of its story than the end.”

What makes QAnon, “Plandemic” and other conspiracies so powerful is that believers have an explanation for every countervailing truth. Experts and others in a position of authority are automatically cast as part of the conspiracy, whether you’re talking about Dr. Anthony Fauci, Hillary Clinton or Joe Biden.

“For QAnon, every contradiction can be explained away; no form of argument can prevail against it,” LaFrance writes. This type of belief system is sometimes referred to as “epistemic closure” — the idea is that believers live in a self-contained bubble that explains everything and that can’t be penetrated by contrary facts.

What can the media do in the face of such intense beliefs? In all likelihood, the answer is: not much. There is a school of thought among some press critics that if only news organizations would push harder, prevaricate less and devote themselves more fully to truth-telling rather than to reporting “both sides,” then a new dawn of rationality would surely follow. But that fundamentally misunderstands the problem, because the mainstream, reality-based media are regarded as part of the conspiracy. Journalism is grounded in the Enlightenment values that LaFrance invokes — the expectation that false beliefs will give way when confronted by facts and truth. Unfortunately, that’s not the world we live in today.

It should be noted that after Donald Trump Jr. posted his hideous attack on Joe Biden, Instagram neither deleted his post nor took down his account. Instagram, as you probably know, is owned by Facebook and is thus firmly ensconced within the Zuckerborg, which wants us all to believe that it is so very much concerned about truth and hate speech.

Thus does such garbage become normalized. You see a reference to Biden as a pedophile, and it seems off the wall. But then you remember he’s apologized for being handsy with women. And wasn’t he accused of sexual assault? And now look — there’s something on the internet about Democrats and pedophilia. Gosh, how are we supposed to know what to think?

Welcome to our nightmare.

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