Legal expert reveals how one of Donald Trump’s tweets could sink his Jan. 6 defense

A tweet that Donald Trump sent out on January 6, 2021, could hamper his efforts to argue that he is protected by the First Amendment if he faces charges for inciting an insurrection, according to former US Attorney Barbara McQuade.

The House select committee investigating the attack on the US Capitol has urged the Justice Department to pursue Trump for inciting an insurrection, obstruction of an official proceeding, conspiring to defraud the US government and making false statements.

In their final report, the committee cited Trump's speeches and rhetoric in the lead up to the attack. But in 1969, the Supreme Court case Brandenburg v. Ohio determined that speech must include an "incitement to imminent lawless action" before it can be restricted or prohibited by the government.

However, McQuade argued that the January 6 committee had framed their allegations against Trump in such a way that it would pass constitutional muster.

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“The stroke of genius I thought, in the committee’s referral, was to base it on that speech, but also on the tweet that Donald Trump sent at 2:24 p.m. where he said that Mike Pence lacked ‘the courage’ to do what was right,” McQuade said during an interview with The Hill.

In the tweet McQuade is referring to, Trump wrote: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth."

According to the committee, “When he wrote those words, he knew exactly what he was doing. Before President Trump issued the tweet, a White House staffer cautioned him that the statement would imply that he ‘had something to do with the events that happened at the Capitol’—but he tweeted it anyway."

McQuade said that the tweet and how the committee framed “it not as inciting an insurrection, but as assisting in an insurrection – I think that tweet probably passes that [Supreme Court] bar.”

However, the legal expert also cautioned that prosecutors could have difficulty in proving intent.

“It requires that you knew what you were doing was wrong. The old George Costanza line: ‘If you believe it, it’s not a lie.’ To what extent did Donald Trump believe these things and to what extent did he know it was all just a fraud and a lie? So all of those things have to be considered by the prosecutors in a way that the committee didn’t have to deal with,” McQuade told The Hill.

The House select committee maintains that Trump "oversaw and coordinated a sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power."

Investigators say the plot began with Trump's campaign to spread allegations that the election was marred by widespread fraud.

He is accused of trying to corrupt the Justice Department and of pressuring his vice president Mike Pence, state election officials and legislators to help overturn the election by violating the Constitution and the law.

Trump is also accused of summoning and assembling the mob in Washington, and directing it toward the Capitol despite knowing it was armed with assault rifles, handguns and numerous other weapons.

And he ignored pleas from his team to take action to stop the violence, lawmakers say.

The committee's case was bolstered by a federal judge in California who found it "more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6."

Authorities say some 140 officers were assaulted during the riot. Around 900 people have been arrested on suspicion of taking part in the attack and more than 800 have been charged with crimes ranging from trespass and assaulting police to seditious conspiracy.

Trump has repeatedly disparaged the House panel on his own Truth Social platform, calling the members "Democrats, misfits and thugs."

With additional reporting by AFP