Donald Trump has been slapped with gag orders limiting his comments on witnesses and others involved in his trials for civil fraud and inciting the Jan. 6 insurrection, but a legal expert said those restrictions are unlikely to prevent the former president from provoking violence.
The ex-president faces tremendous peril from criminal prosecution and potentially ruinous lawsuits, and his rhetoric has grown more menacing as his days of courtroom reckoning have arrived, wrote author Jeffrey Toobin in an op-ed for the New York Times with the headline "Donald Trump is Going to Get Someone Killed."
"Mr. Trump’s adversaries often look to the courts for relief, but there’s no remedy there for his tirades," Toobin wrote. "The First Amendment protects all but the most explicit incitements to violence, so Mr. Trump has little reason to fear that prosecutors will bring charges against him for those remarks."
POLL: Should Trump be allowed to run for office?
The most notorious moment of his presidency came when he urged his supporters to "fight like hell" on Jan. 6, 2021, and many of those who heeded his command and stormed the U.S. Capitol have paid a price. But he hasn't, and the Constitution's broad protections for speech prevented special counsel Jack Smith from charging Trump in connection with the violence, Toobin wrote.
"Angry people, especially those predisposed toward violence, can be set off by encouragement that falls well short of the legal standard for criminal incitement," Toobin wrote. "To see the consequences of such constitutionally protected provocation, one need only look to the case of Timothy McVeigh, who set off the bomb at the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people on April 19, 1995."
McVeigh was specifically angry over the deadly FBI raid on the Branch Davidian complex near Waco, Texas, and former President Bill Clinton signing an assault weapon ban, but incendiary language from House-speaker-to-be Newt Gingrich and, especially, Rush Limbaugh helped fuel his rage.
"Mr. Limbaugh was saying things like, 'The second violent American revolution is just about — I got my fingers about a quarter of an inch apart — is just about that this far away,'" wrote Toobin, who recently published a book on McVeigh and right-wing extremism. "Of course, all of this rhetoric, from the words of the novel to those of Mr. Gingrich and Mr. Limbaugh, was protected by the First Amendment."
Trump hides behind the First Amendment to evade legal consequences and howls cries of wounded innocence to escape political consequences, but his statements present real danger to the targets of his rage.
"Mr. Trump has never respected the norms of political behavior and there’s little reason to think gag orders will provide meaningful discipline either," Toobin wrote. "As on Jan. 6, his supporters shed traditional rules as well. The day is fast approaching when someone picks up a gun or builds a bomb and then seeks to follow through on Mr. Trump’s words. If and when that happens, he will say that he did not specifically direct or cause the violence, and he will probably escape without criminal charges — but the blood will be on his hands."
