Good and Bad Legal Takes on Incitement to Insurrection

A quick guide to distinguishing Trump apologia from serious legal analysis.

Recently we got one very bad (MSNBC) and one very good (Politico) legal analysis of the criminal case against Donald Trump and other Republican lawmakers for incitement to riot—in political rather than legal terms, incitement to insurrection.

Here are three key differences between a quality legal analysis of this historically important subject and one that acts as a mere apologia for GOP complicity in the ongoing Trumpist insurrection:

1. A competent legal discussion of the question acknowledges that investigators and prosecutors will be looking at much more than speeches. You don’t charge incitement based merely on words—the actus reus, or criminal act, of an incitement fact-pattern—but also based on any evidence surrounding the words that establishes the mens rea (“guilty mind,” or criminal intent) necessary to prove the crime. So evidence of texts or emails being sent between those involved in the Save America March, evidence of key conversations preceding or during or after the event, and other forms of testimonial or documentary evidence establishing what Trump, Brooks, and other insurrectionists intended their January 6 words to accomplish will be considered by federal law enforcement and, as appropriate, will be put before a grand jury.

2. A competent legal discussion of incitement to riot is one in which investigators and prosecutors consider the entirety of a suspect’s words. This means not just the obvious—considering things Trump, Brooks, and others may have said in the days leading up to the Save America March, which provide a critical frame to how they meant certain words and phrases on January 6 and how they would likely have been taken by their audience—but also, and more importantly, the entirety of each suspect’s Save America March speech itself. The terrible MSNBC analysis linked to above tosses out most of what Trump said during his 75-minute address to an armed mob at the Ellipse on January 6, falsely suggesting that the president didn’t urge imminent action and/or that any such incited action wasn’t criminal. Both submissions are untrue, as confirmed by my detailed analysis of the speech. The short version: Trump—in cahoots with other Save America March speakers, whose speeches he had solicited and whose general rhetorical thrust he was obligated to be aware of as a prior framing of his own address—told an armed mob to march on the Capitol and to “stop the steal” once they got there, an action that could only be accomplished via criminal trespassing followed by interference with a joint session of Congress. There is, and this simply can’t be emphasized enough, no evidence from any of the Save America March speeches that their authors merely wanted the Trumpist mob to peacefully but vocally protest several blocks from the Capitol. Every word from Trump and his compatriots underscored that rally-goers needed to get inside the building and physically intrude on the proceedings then ongoing there.

3. Politico, unlike MSNBC, does the hardest thing of all for a legal commentator to do: remember that criminal cases are ultimately decided by civilian juries made up of people with a lot more common sense than most lawyers have. Politico notes that while legal professionals may enjoy parsing out of coherence the words of a given speaker, jurors are more likely to take an “if it walks like a duck and quacks like a duck, it is a duck” approach to deciding questions of fact—suggesting that the “plain meaning” of Trump’s and Brooks’ exhortations will be adopted by jurors, and that jurors will consider more than some attorneys would the plain evidence of what GOP politicians’ words on January 6 and before ultimately produced. It’s also widely accepted that, because D.C. is an overwhelmingly Democratic city, any jury drawn from the population living there is likely to take a dim view of Republican attacks on democracy even if none of the jurors are explicitly biased against any given GOP defendant.

I mention all of this because as I’ve been saying for years on Twitter, we have a tendency in America to automatically assume that criminal cases against rich, famous, and/or powerful white-collar criminals are desperately hard to make out—even as media and politicians implicitly assume that “street crime” (often code for a crime with a blue-collar and/or nonwhite alleged perpetrator) is and should be relatively easy to prove. If this country is going to heal, and if our current historic economic and cultural polarization are to diminish from the dangerous levels they’ve reached, we must have a legal system that finally rises to its eternal promise of equal justice under law.

While the First Amendment is a bedrock of democracy, and while it’s natural for any prosecution for incitement to encounter a First Amendment defense, even on the evidence we already have—and so much more is coming—there is a colorable criminal case for incitement to riot against both Trump and Brooks that federal investigators must vigorously pursue.