The House Select Committee investigating the January 6th Capitol riots on Monday made unanimous, bipartisan criminal referrals to the United States Department of Justice against former President Donald Trump.
However, professors Alan Z. Rozenshtein of the University of Minnesota Law School and Jed Shugerman of Fordham Law argue in a new essay in The Atlantic that prosecutors need to proceed very carefully with pursuing the charges laid out by the committee, as they could easily run afoul of the former president's rights under the First Amendment of the United States Constitution.
In particular, they caution prosecutors against leaning too hard on Trump's infamous speech at The Ellipse in which he encouraged his supporters to "fight like hell" to overturn his election defeat, as such rhetoric is commonly used by politicians and is not in itself a solicitation of violence.
That said, they do not believe that Trump is entirely out of hot water.
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In particular, they cite testimony by former White House aide Cassidy Hutchinson to show that "Trump took additional concrete acts that he knew would increase the risk of violence," such as demanding that armed supporters be let into his Ellipse speech on the grounds that they weren't there to harm him.
Additionally, they write that Trump's actions during the riots show that he gave at least tacit approval to the mob's actions.
"Not only did Trump not intervene for several hours once the violence began, he tweeted, knowing full well that the mob was wandering through the Capitol calling for the hanging of the vice president, that 'Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,'" they note.
The key in prosecuting Trump, they argue, lies in deterring future would-be authoritarians from inciting mobs to attack Congress, while also protecting the right to political speech under the First Amendment.
"This approach would reaffirm the government’s commitment to a robust First Amendment, to the democratic process, and to the rule of law," they conclude.
