Whether Trump ‘incited’ Capitol riot is in eye of the beholder

It should be easy to make the political argument Trump’s words are at fault. Legally, it will be more difficult.

Trump faces political accusations of 'inciting' the Capitol riot, but the bar is much higher for him to be held legally responsible [Jim Bourg/Reuters]

As thousands clad in Donald Trump hats and wielding Trump flags stormed the US Capitol last Wednesday, it was Trump’s own words just prior to the riot urging them to “fight” that is being blamed for the violence that ensued.

According to the House resolution laying out the article of impeachment the US House of Representatives is expected to debate this week, it was Trump’s speech at the Ellipse, just across the street from the White House, that is the evidence for their allegation that Trump “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States”.

The resolution states that “shortly before the Joint Session” to count the Electoral College votes and certify President-elect Joe Biden’s victory “commenced, President Trump … reiterated false claims that ‘we won this election, and we won it by a landslide’”.

“He also willfully made statements that, in context, encouraged – and foreseeably resulted in – lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore’,” the resolution continues.

“Thus incited by President Trump, members of the crowd he addressed … unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”

The House impeachment effort boils down to Trump’s uttering of “if you don’t fight like hell you’re not going to have a country anymore”.

Impeachment versus legal guilt

The impeachment process is inherently a political one, not a legal one, meaning while members of Congress generally refer to legal language when considering whether a president committed “high crimes and misdemeanours”, there is no requirement that Congress needs to legally prove that the accused is guilty of those crimes, though generally there is a lot of effort to gather as much evidence as possible.

Because the process is driven by politics, it is therefore driven by American sentiment towards the accused president and whether a majority of Americans agree with the accusations. In this case, a poll released on Sunday is the first indication that impeaching Trump might not be a very controversial move.

In the ABC News/Ipsos poll, 67 percent of Americans said Trump deserves a great deal or good amount of blame for the riot, including 69 percent of independents but only 31 percent of Republicans.

The same poll suggested that 56 percent of Americans think Trump should be removed from office before his term ends on January 20.

That is a significant difference from when Congress impeached but failed to remove Trump from office in 2019-2020. Last year, Americans were split throughout the entire process, with a clear majority never materialising to punish Trump.

The difference in Americans’ opinions is a likely indicator the process this time around could move more quickly with much less controversy. Certainly, the political winds will give members who vote to impeach significant political cover against those who argue this process is happening too quickly, dispensing with the traditional lengthy investigation and deliberation given to previous successful impeachment efforts.

But just because Congress says Trump is guilty of “inciting” the riot, does not mean he is guilty in the eyes of the law. Congress’s actions could result in Trump being removed from office or preventing him from holding office again, but it does not meet the legal bar of actually holding him liable for the illegal behaviour and destruction of the Capitol caused by the rioters.

And that legal bar is quite high, according to experts.

The former District of Columbia assistant attorney general, Jeffrey Scott Shapiro, who has experience successfully – and unsuccessfully – convicting protesters for incitement, argues Trump did not violate any incitement laws with his speech.

Shapiro, who currently serves as a Trump appointee to the US Agency for Global Media, pointed out in a Wall Street Journal op-ed on Sunday: “In the District of Columbia, it’s a crime to ‘intentionally or recklessly act in such a manner to cause another person to be in reasonable fear’ and to ‘incite or provoke violence where there is a likelihood that such violence will ensue’.”

A protest sign is tied to a city street post near the US Capitol, January 7, 2021 [Erin Scott/Reuters]

In addition to the “fight” language the House resolution cites, Shapiro mentions that another of Trump’s lines from his speech is being held up as evidence of incitement: “We’re going to cheer on brave senators and congressmen and -women, and 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.”

But Shapiro also points out that Trump declared: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Shapiro argues: “The president’s critics want him charged for inflaming the emotions of angry Americans. That alone does not satisfy the elements of any criminal offence, and therefore his speech is protected by the Constitution that members of Congress are sworn to support and defend.”

Andrew Koppelman, a constitutional law professor at Northwestern University in Evanston, Illinois, told The Associated Press news agency it would be difficult to prove Trump intended for violence to ensue at the Capitol, given past legal precedent.

Koppelman said the use of the word “fight” by Trump and by his lawyer Rudy Giuliani in earlier remarks at the rally sounded more like a turn of phrase than an incitement to violence, the AP news agency reported.

“It’s like the word fight. It’s often used as a metaphor. ‘Senator X is a fighter. He will fight for you’,” Koppelman told the AP news agency.

After Biden is sworn in next week, there will be calls from his fellow Democrats for his Justice Department to go after Trump legally, regardless of the difficulty prosecutors are likely to encounter getting an incitement charge to stick.

Biden, who refused to back congressional Democrats’ impeachment move, has said he is more interested in other issues than trying to punish Trump for the riot or the litany of other transgressions some Democrats are pushing for Trump to be punished for.

“I’m focused on the virus, the vaccine and economic growth,” Biden said on Friday.

Notably, that was said before polling showed a majority of Americans laying the blame for the riot with Trump. But if future polls back up that finding, the political pressure for Biden to urge legal action will likely intensify.

Source: Al Jazeera