What Ever Happened to the Prosecution of Donald Trump for Incitement?

This is the one year anniversary of the disgraceful rioting in the Capitol building. The scenes of that day are seared in the memory of many of us. I publicly condemned Trump’s speech while it was being given and I called for a bipartisan vote of censure over his responsibility in the riots. However, I have long maintained that there was no evidence to support a criminal charge against Trump for incitement. Yet, a year ago, various legal experts declared that Trump should be charged based on his speech and his delay in calling for protesters to leave Capitol Hill. District of Columbia Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks and charging him with incitement.  So, a year later, what ever happened to the prosecution of Donald Trump?

Racine and others were not restrained by Republicans in Congress and clearly were eager to make the “clear” case for prosecution. The fact is that they were restrained by the Constitution and the media attention over their dubious claims quietly faded away like so many other “slam dunk” charges highlighted on cable news programs.

Democratic politicians and commentators are still demanding that Trump be criminally charged. Former Democratic Sen. Claire McCaskill, now an MSNBC analyst, recently declared that Attorney General Merrick Garland would “go down in infamy as one of the worst attorney generals in this country’s history” if former President Trump is not charged. Garland seemed to respond to the pressure this week by pledging that his department would charge any responsible “at any level.”

Those three words revived the hopes of many on CNN and MSNBC, which spent four years trafficking in often unfounded theories of criminality against Trump and his family. Indeed, many of the same legal experts reappeared to offer assurances that Trump can still be frog marched to the hoosegow.

It is all too familiar. Just a year ago, cable networks were riding high on ratings by offering a steady diet of blockbuster stories establishing clear criminal conduct by Trump or his family. Former House counsel Norman Eisen was assuring viewers that Trump was “colluding in plain sight” and the criminal case against Trump for obstruction of justice was overwhelming. Professor Richard Painter was explaining the clear case of treason against Trump. Professor Laurence Tribe declared the dictation of a misleading statement about the Trump Tower meeting constituted witness tampering. Tribe further claimed strong cases for obstruction of justice, criminal election violations, Logan Act violations, and extortion by Trump or his family.  Others explained that Trump could be charged with negligent homicide over the Covid-19 crisis.

The same figures were back on Jan. 6th to declare the Trump speech to be sufficient for prosecution. Legal analyst Elie Honig said he would “gladly show a jury” his inflammatory remarks and “argue they cross the line to criminality.” Professor Richard Ashby Wilson said, “Trump crossed the Rubicon and incited a mob to attack the Capitol as Congress was in the process of tallying the Electoral College vote results. Trump should be criminally indicted for inciting insurrection against our democracy.” Laurence 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.”

So what happened?  Even if you assume that Trump was protected by his own Justice Department, it was only a matter of days before the Biden Administration was in place and ready for new prosecutions. Moreover, District of Columbia Attorney General Karl Racine announced that week that he was investigating Trump for a possible incitement charge. He was heralded in the media with global coverage. Then nothing happened.

The reason is that the speech itself was not a crime. Indeed, it was protected free speech. They knew that a court would throw out such an indictment and, even if they could find a willing judge, any conviction would be thrown out on appeal.

In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.

The fact is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”

Trump also stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”

He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.

Notably, the Ku Klux Klan leader Clarence Brandenburg referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court nevertheless overturned his conviction. Likewise, in Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.

That is why Racine did not arrest Trump, even after he left office shortly after the riot.

The House is still trying to generate new evidence not found by the Justice Department. Despite arresting hundreds and investigating thousands, the Justice Department never found an “insurrection” or “rebellion” to be charged. Instead, most people were charged with crimes like trespass or unlawful entry. A few faced more serious charges of assaulting officers.  This remains a protest that became a riot due to the reckless rhetoric of the rally and the lack of preparation by the Capitol.

None of that belittles the responsibility of those who rioted or excuses their conduct. These individuals are being rightfully prosecuted and have been given severe sentences given these charges.

Moreover, the House could still find that “smoking gun” evidence that supports a criminal charge against Trump. Yet, the media is hyping “bombshell” disclosures that do little to move that needle. For example, Vice Chair Rep. Lynne Cheney recently announced that they had proof that Ivanka Trump asked her father to issue a statement to encourage protesters to leave the Hill but President Trump still delayed in making such a statement. That is not a crime. Being callous or slow in making public statements may make you a bad person or bad president but it does not make you an actual criminal. This is not some form of nonfeasance in failing to take an action required by law. Such a prosecution would allow the prosecution of politicians for a wide array of statements not made in times of political discord. It would gut the First Amendment.

Such analysis is hardly popular with images of rioters smashing windows in the Capitol being replayed on cable networks. In an age of rage, one must be unequivocal and amplified in your outrage to avoid suspicion. I recently told the Washington Post that a viable case against Trump would need to show that he took concrete steps in enabling, anticipating, or coordinating the riot. In response, Washington Post columnist Jennifer Rubin (who has called for burning down the Republican party and expulsion of Republican members) declared “I have no idea what Turley is talking about. You don’t need to prove Trump intended the riot. He intended to obstruct Congress. This is what @RepLizCheney was explaining last week.”

That reference is to the crime of “corruptly obstructing an official proceeding,” a charge against some rioters. However, Trump was not among them. Swapping out “incitement” or “insurrection” for obstruction does little to address the fundamental constitutional barrier. It would still criminalize free speech and run counter to controlling case law. Democrats have in the past challenged electoral votes and have participated in protests over certification. In January 2005, Boxer joined former Rep. Stephanie Tubbs Jones to challenge George W. Bush’s victory over Democratic challenger John Kerry in the state of Ohio. Boxer argued that Republicans had engaged in voter suppression. Many who are condemning the challenge today heaped praise on Boxer in 2004. That is not itself an obstruction of Congress. For Trump to call for the same opposition, it is not itself obstruction.

Moreover, if Trump is not legally responsible for the riot, he is not legally responsible for waiting to call for the rioters to stop.  What the Committee would need is evidence that Trump actively withheld resources or obstructed efforts to quell the riot. Thus far, the record shows that refusal of a large national guard deployment was refused on Capitol Hill and not at the White House.

From the D.C. Attorney General to the current U.S. Attorney General, there has been no paucity of time or lack of investigation over the last year. They certainly know where to find Trump who is hiding in plain view at Mar-o-Lago. Indeed, Rubin (who praised Garland’s nomination, as did I) recently declared him to be a mistake for failing to arrest Trump. The other possibility is that there was a will but not a crime.

172 thoughts on “What Ever Happened to the Prosecution of Donald Trump for Incitement?”

  1. WHATEVER HAPPENED TO THE $15 AN HOUR NON-SENSE THAT WAS BEING PUSHED WHILE PRESIDENT TRUMP WAS IN OFFICE BUT NOW HAS MYSTERIOUSLY DISAPPEARED ?

  2. “She was killed because she chose to climb into the Speaker’s Lobby,”

    This is the level of stupidity Anonymous the Stupid sinks to. She was no threat to anyone, but Anonymous the Stupid wants her killed anyway. This is the type of Maoist-Stalinist ATS is. He is willing to kill anyone who interferes with what he wants.

    Anonymous the Stupid uses his banned address intentionally, so everyone else’s comments get wiped out. What a guy. He doesn’t like to live by the rules to destroy everyone else. This guy doesn’t care about the murder of over 100 million people in the last century. After all, they were unarmed like Ashley Babbitt, but they acted in defiance of totalitarian actions like her.

    This slob has been posted under various names and icons and can be recognized by the trickster he is and by the lies he tells.

    1. Again, Prof. Turley makes reference to Trump calling for the Nat’l Guard prior to J6, and Pelosi as Speaker denying that request. However, Pelosi’s rep. says they never got a request, therefore never requested the NG? Somebody must be wrong. Anyone have a reference, proof this request was made? Trump said the same thing again last night on Hannity. Anyone else heard the release of a document (oddly enough on J6 as well) regarding Pelosi’s father (D’Lessio) from the past, during Kenned years saying he may have had Mob ties, or was a Communist sympathizer?

  3. The Left….Double Standards….and plain ol’ lying by the Media.

    Why is the “mostly peaceful” description appropriate for Leftist Riots….but not for the January 6th “mostly peaceful” Riot?

    Did the Right take to the streets and commit riot, arson, assault police officers, and damage private property when Biden was inaugurated?

    If they had….how would the media have played it you think?

    The Media has over done it in its acting as the propaganda arm of the Democrat Party…..the majority of Americans now see the Media for what it is exactly…..pimps for the Leftist Agenda and give it no credence.

    The coming Supreme Court Decisions on Covid Mandates is going to tell the American People wether this Court shall begin to reign in the Biden Administration’s excesses or whether that shall become a task for the American People.

    The Constitution and Bill of Rights instruct us on how this Nation is to be…..not the Media.

    That goes to the persecution of Trump by the Democrats……in time they shall lose their control of Congress and the White House and when they do I pray the Republicans that take Office shall begin the needed task of cleaning house at every level of government and return this Country to the Rule of Law…..and not more Rule of Men.

  4. Let us remember January 6 for what really happened: the murder of a genuine patriot, Ashli Babbitt, at the hands of a criminal fake-“law enforcement” person, Michael Byrd. That was a deliberately planned execution designed to send a message that tyranny is in charge. The FBI’s agent provocateurs that were actually working to foment violence have each been quickly released, taken care of, and removed from public view, with the assistance of the presstitutes. Everything else is pure democrat and rino BS theater that fools nobody by the dupes, dummies, dolts, and dimwits.

    1. JF,

      There was about 14,000 hours of video taken during January 6th…..taken by all manner of cameras….security, body, cell phones.

      This video you have linked plainly is edited to present exactly one point of view.

      Vieweers should take notice ol’ Ray Epps saying he would be arrested if he even said something….then did say that something….and yet to this day….good ol’ Ray has not been arrested or charged.

      There are accusations he was fomenting trouble at the behest of the FBI or some other Law Enforcement Agency.

      Why has that one issue not been fully documented, investigated, and reported on by the Federal Authorities to include the House Select Committee?

      Now I understand how busy they are in trying to get the Pillow Man’s phone records and all….but one would think having ol’ Ray on video as they do….he would have been one of the very first investigated….after all the FBI had him on their Most Wanted immediately after the 6th.

      He isn’t on that list anymore…..why?

      If my mug had featured on the FBI Wanted List….and I had been investigated and cleared of any criminal wrong doing I would damn sure want the FBI to announce that fact so as to clear my name and un-sully my reputation.

  5. Dims are trying to federalize our election process. Power will come from the top down, not the bottom up.

  6. It’s amazing what you’ll find by searching Turley’s archive. Just to prove ONCE AND FOR ALL the level of sheer contempt that Turley has for Trump, I present you:

    https://jonathanturley.org/2011/12/09/newsmax-flames-out-trump-debate-down-to-gingrich-and-santorum/

    Turley says:

    “NewsMax CEO Christopher Ruddy’s cynical and sensational selection of Donald Trump to moderate the next presidential debate has backfired. Ruddy united conservative and liberal commentators and candidates in denouncing him and NewsMax for the obscene idea — with Ron Paul and Jon Hunstman leading the way in immediately refusing to participate in such a circus. Perry, and Romney were the next (rather belatedly) to refuse to participate. Bachmann has now also declined to participate on a program with look of The Apprentice and the dignity of the Jersey Wives. That leaves Santorum and Gingrich who have confirmed that they will appear with a carnival snake charmer to get on TV.”
    ———————-

    An “obscene” idea for Trump to moderate a debate! Ouch!

    Trump as a “carnival snake charmer”! Yikes!

    Turley continues:

    “Perry yesterday “respectfully declined the invitation due to other campaign commitments. It was less than honest as the basis for the rejection and certainly less redeeming than the condemnations of Paul and Huntsman for Ruddy’s effort to degrade American politics even more with the use of such an absurd reality television star.”
    —————

    “Absurd reality television star”! I can only imagine how more absurd Turley would have thought Trump as a presidential contender!

    Turley concludes:

    “Now he will be left with what is down to a three-person freak show with Santorum and Gingrich in a race to the bottom of American politics.
    ——————

    “Three-person freak show”! Holy Moly!

    Turley has always been a Never Trumper.

  7. You sound as communistic as they come Mr Turley. According to the Democrats antifa good, blm good, citizens protesting a stolen election bad. Shame on you.

  8. Wish I had written this. It is deliciously seditious, hilarious beyond belief, and so spot on:

    I liken Jan 6th to 6/4/74, when drunken Cleveland Indians fans stormed the field in the 9th inning against the Texas Rangers on ten cent beer night.

    https://www.youtube.com/watch?v=VxTtzLUteDA

    More serious points below . . .

    1. So Turley thinks it’s fine that the protesters have been in 24/7 single room lockdown for about one year now. Prevented from necessary medical care, the right to work on their own defense, no contact with family and friends sounds about perfect for the leftists POS. My name is Glen Christensen and I live in Texas and this is the way I think about it. I am not afraid to publish my name as part of my comments as I see so many arm chair quarterbacks, present commenters included.

  9. A party that does not believe it can win politically often tries to criminalize its adversaries.

    There are genuine unresolved questions surrounding the 1/6 riot that are genuinely important and merit scrutiny. It is proven that the FBI had at least two informants on the ground with whom it was communicating as the protest unfolded, but the full extent of the FBI’s role — whether it replicated what it repeatedly did during the first War on Terror and then again in engineering the attempted kidnapping of Michigan Gov. Gretchen Whitmer — remains unknown. That is because the only bodies capable of discovering the answers — the DOJ and the Congressional 1/6 Committee — have no interest in finding out. The contrary is true: they have a strong interest in suppressing those facts because it undermines rather than advances their fear narrative.

    https://greenwald.substack.com/p/the-histrionics-and-melodrama-around

  10. What will happen next is obvious: A total crushing, anti-free speech effort that treats Trump-supporting groups like Branch Davidians. An effort to restore the fundamentally unserious neocons as the voice of reason in the room. A hardening of the bounds of the People’s House to keep people away from politicians. A use of any levers of government power — including audits, regulation, and lawfare — to harass conservatives now categorized as seditionists and terrorists by the incoming president who falsely claims to want to unite the country. And above all, a doubling down on all the policies and efforts put in place to crush exactly the type of people who showed up at the Capitol in a foolish, desperate attempt to make themselves heard.

    -Ben Domenech

    Except I would call it futile, not foolish.

  11. “So, a year later, what ever happened to the prosecution of Donald Trump?”

    +++

    Same thing that happened to the impeachments. Remember those? Street theater to disguise the damage the Democrats are doing while trying to harvest more power to abuse.

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