Why Has Trump Not Been Charged With Criminal Incitement?

Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels.  The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.

Here is the column:

Donald Trump may be the most convicted man never charged in America. According to media reports, the Justice Department has decided not to charge Trump with campaign finance violations related to hush money paid to former stripper Stormy Daniels. What was touted by many experts as a slam-dunk criminal charge has now joined a long list of alleged crimes that once were nightly cable-news sensations.

The disconnect between legal analysis and legal reality matters little in today’s media. Many of the same experts now trumpet the charge of criminal incitement in the Jan. 6 Capitol riot. In their minds — unsurprisingly — it is another open-and-shut case. For four years, they have supplied a stream of allegations, all described as conclusive, to feed readers’ and viewers’ insatiable appetites. The campaign finance charge actually was one of the more credible claims, since former Trump lawyer Michael Cohen pleaded guilty to it. However, such crimes are notoriously difficult to litigate, as shown by the failed 2012 prosecution of former presidential candidate John Edwards.

Many of these alleged criminal acts were presented as reassuringly simple and straightforward. Former prosecutor and Washington Post columnist Randall D. Eliason insisted Trump committed bribery in the Ukraine scandal since “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” It did not matter that the Supreme Court has roundly rejected such sweeping interpretations of bribery, extortion and related political corruption. Others claimed Trump committed “felony bribery” by fundraising for Republican senators when he was about to be impeached.

Former CNN legal analyst and former House impeachment counsel Norm Eisen claimed that, by not responding to Russian aggression, Trump was “colluding in plain sight” and the criminal case against him for obstruction of justice was “devastating.” That was in 2018.

Former Watergate prosecutor Nick Ackerman said Donald Trump Jr.’s emails about meeting with Russians at Trump Tower were “almost a smoking cannon,” adding that “there’s almost no question this is treason.” Professor Richard Painter claimed a clear case for treason. Harvard professor Laurence Tribe declared Trump’s dictation of a misleading statement about the Trump Tower meeting constituted witness tampering; Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion and possible treason by Trump or his family.

Now, experts claim Trump’s Jan. 6 speech clearly was criminal incitement. Said CNN legal analyst Elie Honig: “As a prosecutor I’d gladly show a jury Trump’s own inflammatory statements and argue they cross the line to criminality.” Richard Ashby Wilson, associate law school dean at the University of Connecticut, said “Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the Electoral College vote results. He should be criminally indicted for inciting insurrection against our democracy.”

Many were quick to repeat their certainty of yet another criminal act. Tribe declared: “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government, preventing this peaceful transition of power and putting a violent mob into the Capitol while he cheered them on.” Bolstering such claims, District of Columbia Attorney General Karl Racine said he was investigating Trump for a possible incitement charge.

What’s strange is that there’s no word of an interview, let alone a charge, on a purportedly clear crime committed more than a month ago. One possible reason is that it would collapse in court. It is much easier to claim easy prosecutions than to prosecute such made-for-TV charges. I do not fault experts for speculating about such a case — but many are claiming, again, that prosecution would be relatively easy. That simply is not true.

The problem is free speech. Trump’s Jan. 6 speech would not satisfy the test in Brandenburg v. Ohio, where the Supreme Court said even “advocacy of the use of force or of law violation” is protected unless it is imminent. Trump did not call for the use of force but actually told people to protest “peacefully” and to “cheer on” their allies in Congress. He later — and too belatedly — repeated that after violence erupted, telling his supporters to respect and obey the Capitol Police.

Racine showed how disconnected these theories are from case law. He noted that Trump failed to “calm them down or at least emphasize the peaceful nature of what protests need to be.” Setting aside that Trump did tell them to protest peacefully, his failure to calm down a crowd is not criminal incitement by omission.

Trump does face ongoing liability — largely the same threats that existed before he became president, in the form of bank, tax and business investigations. But the litany of crimes breathlessly suggested over the last four years passed without charges. Nevertheless, experts have lined up to argue now that there are no free-speech or legal barriers to prosecuting Trump for incitement.

There is now a difference, however: There’s no longer an excuse that Trump cannot be indicted in office (which I do not believe is true), or that he would just pardon himself (which he didn’t do despite predictions he would). What was conveniently hypothetical can be an actual prosecution today. If criminal incitement is such a strong case, make it — charge him. Of course, such prosecutions could come at a cost. Unless there is evidence of direct intent, Trump is likely to prevail at trial or on appeal. He then could claim not just vindication on a federal charge but also on his second impeachment.

There is no crime of incitement for legal analysts who exaggerate or oversimplify criminal provisions; the public can be whipped into a frenzy with claims of easy prosecutions or slam-dunk charges. Many people are addicted to rage and these claims, even if illusory, feed that addiction. It is all entertainment until someone actually tries to bring a prosecution — and that is when reality sets in.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.

230 thoughts on “Why Has Trump Not Been Charged With Criminal Incitement?”

  1. Why hasn’t the Biden Justice Department started a criminal prosecution against Trump under 18 USC 2383 for inciting insurrection? Just wait. They just haven’t gotten around to it yet. It will happen. It will likely fail, however, for the reasons you discuss and for several other factors. Among those factors are these:

    1. The Justice Department is already planning to prosecute several of the participants in the melee for conspiring to incite the event. It is logically possible, but not likely that what Trump said was a tipping point. The perpetrators were bad people with bad intentions. They didn’t need any incitement as they had already planned to storm the Capital. That is what some of the perpetrators are being charged with.
    2. The Capital invasion had begun even before Trump finished speaking. He can’t incite an event that was already happening.
    3. According to his critics, Trump’s most inflammatory phrase that day was to “fight like hell” – with emphasis on the word “fight.” But in common usage as a metaphor, the word “fight” no longer implies violence. Consider these now common usages for the term which never imply using violence:
    *Every civil rights proponent urges his followers to fight injustice, fight racism, or to fight for equality;
    *Every candidate for public office promises to fight for his or her constituents’ interests;
    *Every high school and college with a sports team and a band has a fight song;
    *Victims who succumb to dread diseases like cancer are often said to have waged a long fight against the disease.

    In times past and in the “old west” the term “fight” may have always implied some kind of violent activity. That is no longer the case. It is now mostly a synonym for advocacy. That is all that Trump appears to have meant by using it. It is no longer an incendiary term and its use should not be the basis for a criminal prosecution.

    1. Please all understand…the fight is not between parties, it is between the haves and the have nots! All that are politicians, and judicial, are deep into this crap.
      This should be obvious, but it’s not to the one’s that watch news and tweets! The combined political and news sources are keeping the “actual” one’s that have open eyes to this squashed. Allowing the easily swayed, to follow whatever path they chose to lead us down!
      Of course this shouldn’t be allowed, but by putting frightening things in front of you daily, people are made more likely to follow any “conspiracy theories that will help them keep all of us in check!
      Check out your elected officials, are they rich? Are they powerful? Do they respond to any of your issues? Why do you vote them out regularly?
      Please think about what is going on before we all are lost to the 1% that have control of all things and citizens!
      LAST CHANCE RD

  2. we can see how little respect Democrat cheerleaders have for “law”

    we should remember that, remember it

    Sal

    1. You don’t have a respect for law either. You were quite gleeful on Jan. 6 when people committed crimes in the Capitol.

      1. Oh, the poor Congress-critters scurried away from the vandals like cockroaches, boo hoo. They are a gang of quasi-criminals themselves,albeit glorified ones,

        and yes i was gleeful to see their holy space of hypocrisy contaminated with dirty boots and hands of the workers running amuck.

        what can i say, I respect a more ancient law, perhaps.

        now let’s get philosophical about this.

        legal positivism is quite simple at the end of the day, and it’s entirely unworthy of respect, though it be the fundamental belief at this time. and what is it?

        “Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.

        https://iep.utm.edu/legalpos/#:~:text=Legal%20positivism%20is%20a%20philosophy,common%20law%20or%20case%20law.

        I will simplify that. law is what the powerful say that it is.

        now any fool in jail knows that much. and every law student must learn it.

        but those who are well educated will see in “legal positivism” essentially what was said over two thousand years ago by the cynic, Thrasymachus:

        “Listen—I say that justice is nothing other than the advantage of the stronger
        — Plato, Republic, 338c”

        One January 6, there was short time in which we wondered a deeper question: who is the strongest?

        sal

  3. You are correct. The enemy is the CCP. The supporters of the CCP are Democrats and globalist Republicans along with many billionaires that have gotten rich selling America down the drain to the CCP . Their employees pay with their jobs and a lower standard of living. There is nothing wrong with free trade but globalism provides aid and comfort to our enemies.

  4. If he were prosecuted on criminal charges, then several of his political opponents should be charged as well since they actually promoted violence against Trump and his allies.

  5. Panem et circenses.
    Bread and circuses.
    Juvenal, 1st-2nd cent. C.E., Roman satiric poet

    The god of Money is the most powerful of all the gods. This is especially true of the so-called “Abrahamic”religions.

    The professor seems never to fail to correct the pontificating by the talking heads, particularly the legal lizards who clutter the “one eyed god, the one and only true God” and the long dead God of the printed word.

    The professor apparently fails to see, or deliberately chooses not to acknowledge, the profit making motive and the nanoseconds of celebrity, if not fame, engendered by spurious and specious pronouncements.

    Or, is the professor, himself, a want-to-be legal lizard … … whose image appears on “The one and only true God” … “Fox,” like … to reveal the “truth” to the great unwashed. Or, is the professor, The Prophet, who has come not down from, who to the top of the “Hill” to present the “burning print” to faithful believers in the divine will of the dead god.

    Fear not! It matters not in the Arena … Bread and Circuses … is only aim, For The Chosen Few, to claim the profit, if not to the fame.

    As for you and me, amusement is the only game. All the while, who is it earns the shame? As we stare at the image on the screen, as we see our clean hands from printed paper, perhaps giving our attention to these legal lizards, talking heads and person(s) on the Hill is where to lay the blame.
    dennis hanna

  6. Turley, in your breathless efforts to defend the absurdly abnormal, you query why Trump wasn’t questioned. The impeachment managers DID request that he appear and testify. He refused. Mueller requested that he appear and testify. He refused, but had Giuliani provide answers to interrogatories that were incomplete and evasive–and he refused to amend or supplement. Trump will never cooperate, and not only that, in the Mueller investigation, he refused to produce documents and procured the lack of cooperation of key witnesses. That’s why you look so foolish when you try to argue that the Mueller investigation was a dud. How could Mueller conduct a thorough investigation with Trump refusing to cooperate and hiding evidence, and doesn’t that fact alone speak volumes abut his guilt? Despite the limitations due to Trump’s lack of cooperation, there were dozens of indictments, a guilty verdict and a guilty plea.

    And, there’s no “case law” that applies to Trump’s fomenting an insurrection. There’s no free speech involved, either. Impeachment is NOT a criminal trial. The Senate decides whether Trump’s conduct qualifies for a vote that he can never hold office again. And, the evidence is overwhelming. After weeks of lying to his disciples about the election being stolen, beginning BEFORE Election Day because polls predicted his loss coming on the heels of an historic run of low approval ratings, continuing despite multiple investigations, recounts, re-recounts, 60+ court cases, being told by Pence he had no power to disenfranchise valid votes that had been certified, Barr telling him there was no evidence of fraud, Chris Krebs telling him that the election was historically secure, despite trying to bully GA officials into canceling valid votes and multiple “Stop the Steal” rallies, he exhorted the faithful to “fight like hell” because they wouldn’t have a country if they didn’t. He told them that he hoped Pence would “do the right thing”, meaning disenfranchise valid votes for Biden and award them to him, which he has no power to do. Hawley said that it wouldn’t be known whether Biden would take office until after January 6th–what do you think he was referring to? Giuliani encouraged “combat”. Did your chubby hero ever say: “now don’t engage in violence”? How and why were the disciples present on January 6th? What was motivating them other than their belief in a pathological liar who continues to maintain there was fraud and that he won in a landslide despite anything resembling proof, and who told them to fight for their country? Did they think they were going to just march around with signs? What further proof of “direct intent” do you want? Why were some carrying zip ties and stun guns? How can any patriotic American ever consider that a person who lies this much and who manipulates the emotions of vulnerable people, who failed spectacularly at being President, who caused unnecessary deaths and collapse of our economy, and who cheated his way into office with the help of a hostile foreign government, that such a person should ever hold office again?

    You ironically speak of whipping up the public into a frenzy with legally-insufficient claims. Your arguments hold no water, but most people predict Republicans will not do the right thing–primarily because they are losing support nationally and they think that if they pander to Trump’s disciples they get free votes. They are Republicans first and Americans second and fear losing what power they still have, so a riot at the home of American democracy, whipped up by a pathological liar and narcissist, is no problem for them. What’s your excuse, Turley? Why do you keep providing fodder for the disciples by using your credentials to feed into the Fox News narrative that Trump did nothing wrong?

    1. Turley has and will reinforce the alternative reality of Trump supporters. Turley has taken the Trump brand and ran with it, he knows his marks as well as Trump.

    2. Natacha: I guess we’ll just have to see if your rant (almost as long as the article itself) is right, or Turley is right. So far, Turley has a pretty good prediction rate on impeachment and made-for-tv charges. Let’s revisit this when it’s over. You game? What I can’t understand is why you’re all over these pages arguing with a guy you don’t agree with every post…nothing else to do? Waiting for your $2,000 check? You’re more like Trump than you think…always arguing with probably everyone, it’s a sickness. Get a life. Go somewhere else and agree with someone (if you can find anyone to agree with).

      1. Uh Dude, I predicted the Republicans will NOT vote against Trump for the simple reason that they have been consistently losing ground nationally and want the support of the gullible disciples. Read what I wrote. The issue of who is right or wrong on the law will not be decided by Congress, because there’s nothing in the Constitution that covers the standard to be applied–i.e., is it the same as for criminal prosecutions (beyond a reasonable doubt), or is it clear and convincing evidence (for things like professional license revocation or termination of parental rights) or preponderance of evidence (the standard for civil cases)? There’s nothing spelling out the specific burden of proof for the House of Representatives, or that allows freedom of speech as a defense for constantly lying to people that an election was fraudulent, despite overwhelming proof that it was not, and stirring up people to “fight like hell” for their country. So, when Turley tries to apply these standards to Trump, I’ll call him out every time because there’s nothing supporting his opinions. But, he has admitted to being on the GOP payroll, so what else do you expect?

        1. Sorry, Natacha, but you have said absolutely nothing to disprove or even address Turley’s basic points. Turley is writing about WHY Trump has not been charged with all these sensationalist accusations that cable news “legal experts” have predicted with absolute 100% confidence that he will be charged and convicted. That is ENTIRELY separate from impeachment. Turley is talking about criminal charges on a variety of accusations – and he clearly says that Trump does have criminal charges to deal with having to do with his pre-presidential business career. The point — which you do not disprove at all — is that for over 4 yrs we’ve been told with absolute certainty that various criminal charges will be brought against Trump because it’s all so easy and so clear. But they have not been. And that is because, as Turley accurately says, sensationalist speculation and lazy guarantees by cable news talking heads is entirely separate from the real world of bringing credible charges in a court of law and litigating them.

          1. I have yet to see any media anywhere predict that the Senate will convict Trump. I have yet to see any cable news legal expert predict that Trump will ever be convicted of anything in any forum, but I have seen discussions about his conduct and how he COULD BE charged. For instance, the call to Raffensberger, trying to get him to falsify vote counts in Georgia by “finding” votes for Trump, is a felony under Georgia law. The call was recorded, so the evidence is there, but will charges be brought? I’ve yet to see anyone predict this. Trump can still be indicted and charged with crimes pertaining to his January 6th and pre January 6th conduct–the Trump Insurrection was only a month ago. I don’t know where you get the garbage about absolute certainty that criminal charges will be brought, but this sounds like more Fox News indoctrination, especially since Turley, as a Fox “contributor” is trying to echo this sentiment. Unlike Trump, Biden does not try to tell the DOJ its business, whom it should investigate and prosecute, or otherwise interfere with its mission or values. Various states, like New York, might go after Trump for things like tax evasion, but I’ve yet to see any predictions about what charges could be, much less the outcome.

        2. “that allows freedom of speech as a defense for constantly lying to people that an election was fraudulent, despite overwhelming proof that it was not”

          Strange how no one has provided any “overwhelming proof” that the election was not fraudulent.

          Yet there is massive amounts of “overwhelming proof” that it was fraudulent:

          https://www.deepcapture.com/2021/01/how-djt-lost-the-white-house-chapter-2-was-there-foreign-interference-in-this-election-you-make-the-call/

          See how I backed that up, Natacha? Whereas, all you have presented is a statement with no “proof” whatsoever to back up your statement.

          So, that makes you a liar.

          1. The “proof” is the certification of the votes from various states and the failed lawsuits. How does someone prove a negative, and by what authority can anyone require states to prove the accuracy of votes after the totals have been certified? Vote counts can be challenged, which they were, and found to be accurate. Trump demanded scrutiny for vote counting, which was done. All voting, tallying and custody of ballots was bipartisan in each and every state. There were recounts, re-recounts, signature match validations, and 60+ lawsuits. Every time proof was demanded, Giuliani and his “strike force” came up short because there is an explanation for each and every claim made by Trump that he asserts constitutes fraud, but Trumpsters are immune to facts. They prefer to believe a pathological liar. I again repeat the request to use logic: Trump lost the popular vote in 2016, he had historically-low polling numbers, he botched the pandemic, trashed the economy, and was predicted by every poll to lose. How reasonable is his claim that somehow the American people not only favored him over Biden, but in a landslide?

    3. Natacha, I would say you are the epitome of Turleys statement “Many people are addicted to rage and these claims, even if illusory, feed that addiction.”

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