According to a commentary written for Politico by two former senior Justice Department officials, Donald Trump likely would not be able to seek refuge by asserting his 1st Amendment right to free speech should he be indicted for inciting the mob to storm the U.S. Capitol last week that led to five deaths.
With the FBI and Justice Department officials scouring the country and arresting participants in the assault that shocked the world, former FBI Deputy Director Andrew McCabe and David Williams, a former inspector general for multiple agencies, write that the Supreme Court has already set the legal threshold for prosecution when it comes to inciting a riot -- and that the president went well beyond it.
"The federal criminal code (18 USC 373) makes it a crime to solicit, command, induce or 'endeavor to persuade' another person to commit a felony that includes the threat or use of physical force. Simply put, it is a crime to persuade another person, or a mob of several thousand, to commit a violent felony," they wrote before providing what would likely be Exhibit A in the trial of Donald Trump-- his actual words.
"In mid-December, Trump tweeted, 'Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!' At the Save America rally, Trump exhorted his supporters to 'stop the steal,' shortly before they launched their attack. He commanded the crowd, 'Because you'll never take back our country with weakness. You have to show strength and you have to be strong.' He made it clear: 'If they do the wrong thing, we should never, ever forget that they did. Never forget.' Near the end of his address, Trump went on to remind his supporters, 'The radical left knows exactly what they were doing. They are ruthless and it's time that somebody did something about it,'" they reported.
Add to that, Trump on Wednesday told the crowd before they attacked the Capitol, "So we are going to—we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give—the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try—give our Republicans, the weak ones because the strong ones don't need any of our help, we're try—going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue."
Those words could come back to haunt the president if the U.S. Attorney for Washington D.C. decides to prosecute the president after he leaves office.
As the two officials wrote, "As a person with good lawyers and experience being investigated, Trump would undoubtedly claim these comments were nothing more than First-Amendment-protected political speech if he were charged with encouraging the mob to commit seditious conspiracy. But that might not help. In 1969, the U.S. Supreme Court, in Brandenberg v Ohio, found that the government can punish inflammatory speech when it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'"
Saying Trump has passed the "test," they wrote that the president's words made clear "he brought the members of the mob to D.C. He convened them at a rally; he and others inflamed the audience with lies about a stolen election and their duty to save the country from the certification that was underway at that moment. He pointed them at the Capitol and persuaded them to "do something about it." He offered to go with them. He had every reason to believe his rhetoric would lead to violence in the same way it did at his rally on December 12."
The authors go on to state that the president could also face charges over the death of Capitol police officer Brian Sicknick who was reportedly bludgeoned to death with a fire extinguisher during the riot that the president inspired.
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