With the 25th Amendment now more or less off the table, and the impeachment proceedings in progress — albeit they clearly will not be finished before Joe Biden is inaugurated — a lot of people are holding out for Trump to be indicted for inciting to riot.
Don’t bet on that either!
I’m not saying that it cannot happen, but there is a long way to go from here to there.
The Federal Statute
First of all, since the Capitol Building is a federal building, federal law is the applicable law. What does federal law say about incitement to riot? Well the answer is to be found in 18 U.S. Code §2102:
|As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, 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, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts. |
(Added Pub. L. 90–284, title I, § 104(a), Apr. 11, 1968, 82 Stat. 76.)
For better or worse, President Bumblehead had his entire speech recorded on video. One can see the whole bloody thing on YouTube:
The President, Don Jr., Rudy Giuliano, and Congressman Mo Brooks all sad rather provocative things during the rally, including about the need to be strong, how weakness wasn’t going to get the job done, how they needed to fight, and so forth, but none of them told the rally-goers to go up to the Capitol building, break in and loot the place.
Trump’s speech in particular was rather long-winded, comprising almost 1:15, and it was mostly filled with grievance and complaint. And self-praise. The “incitement” parts of the speech were actually rather sporadic, sprinkled throughout his winding diatribe. He also said on at least one occasion in his speech that he wanted people to go up to the Capitol “peacefully.”
We now know, after the fact, that Trump was initially excited by the riots, and retreated to his office to watch it all unfold on TV. Various of his advisors — including Ivanka, Mark Meadows and Kayleigh McEnany tried to get him to put out a statement — which he eventually did. That was (of course) his one minute video on Twitter — since deleted — where he told his followers that he could understand their pain, that he “loved them,” that they were “very special,” and that they should now “go home in peace.”
The next day Trump put out a more complete statement condemning the violence, where he was reading off of a teleprompter with (as one commentator put it) “all the conviction of a hostage video.”
The most decisive Supreme Court test on what is required to be guilty of incitement to riot is Brandenburg v. Ohio, 395 U.S. 444 (1969). A KKK member invited a television reporter to film a rally, at which members announced plans for a march on Washington to take place on the Fourth of July at which they would take “revengeance” against the blacks and Jews they claimed were oppressing “white Caucasians.” The Supreme Court reversed a misdemeanor conviction announced a three-part test in response, which required:
- Intent to speak;
- Imminence of lawlessness;
- Likelihood of lawlessness.
Nwanguma v. Trump
There is another case that casts doubt about the ability to convict Drumpf of incitement to riot, and that is a case that involves Drumpf himself. This case stems from Drumpf’s 2016 campaign where Drumpf asked his supporters to get rid of a bunch of protestors at a rally. Nwanguma v. Trump, No. 17-6290 (6th Cir. 2018). At a rally in Louisville Drumpf asked his supporters to “get ’em out of here,” (speaking in reference to several protestors that were bothering him), and as a consequence several protestors were pushed and shoved, and at least one was punched in the stomach. The court found that Drumpf’s comments did not specifically advocate “imminent lawless action” and he could not be held liable for the injuries.
Keep in mind that, as long as he’s still President, Trump could literally pardon all the January 6th insurrectionists, as well as everyone who was involved with the pre-insurrection rally. He could also (of course) try to pardon himself although, for reasons previously discussed, that one is not likely to succeed.
So, my friends, don’t get too excited about the notion of Drumpf getting indicted for his deplorable performance in front of the White House on January 6th. There will (and should be) some investigations, but don’t think this will get Drumpf incarcerated.
There is still the law of the District of Columbia, and the Attorney General of D.C. is apparently going to investigate prosecuting Drumpf and his followers, but I’m not sure that will bring us any further than where we can get under federal law.