The world watched in horror Wednesday as a violent insurrectionist mob attacked the U.S. Capitol in an attempt to obstruct the democratic process of certifying the vote for president. Five Americans died in the attack, including Capitol Police Officer Brian Sicknick. If the federal investigation into the deaths determines that those responsible were incited to violence at the Save America rally that occurred just hours before, President Donald Trump could face criminal charges, even if he didn’t storm the Capitol himself.
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.
From the early results of the investigation, we know that several insurrectionists already have been charged with felonies. However, the crime posing the biggest problem for the president could be having solicited the mob into a seditious conspiracy. The federal criminal code makes it a crime for “two or more persons … to oppose by force the authority [of the United States] or by force to prevent, hinder, or delay the execution of any law of the United States” (18 USC 2384). That felony, including the use of force, clearly was committed by the mob after being encouraged by the president.
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.”
Then, the president closed his nearly 11,000-word performance saying, “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.”
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.”
Trump passes the test. As his statements make 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.
Trump could also have a bigger problem. If the federal murder probe into Officer Sicknick’s death determines that those responsible were incited to violence at the Save America rally just hours before, Trump could find himself charged with inciting a murder. Proving the president intended to incite the crowd to commit murder would be a long shot bordering on impossible. But the mere fact that we are discussing this remote possibility is a sad statement about the state of this presidency.
The Department of Justice, the FBI and the Capitol Police are conducting a broad and thorough investigation. The facts uncovered in that investigation—not politics, fear or favor—will determine who is prosecuted. While there is little question that Trump’s words at the rally, and those of others (Rudy Giuliani, Donald Trump, Jr.), incited the crowd to what the Brandenburg court called “imminent disorder,” we will have to wait on the prosecutors to assess the merits of any possible cases.
In the meantime, the images of that disorder erupting in an excruciating torrent of violence against the foundation of American democracy will repeat on an endless loop in our memories. If our democracy is to recover from that assault, all those responsible should be held accountable.