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.