Former Guy inciting insurrection and sedition
Trump and the Capitol Insurrection: What could a trial look like? |By Rob Miraldi, echo opinion published in the New Jersey Herald.
Ladies and gentlemen, we’ve seen a riot at the U.S. Capitol and the failed impeachment of the 45th former president of the United States. But today we begin the trial of Donald John Trump for inciting a mob of thousands of insurrectionists to overrun, ransack the U.S. Capitol on Jan. 6, 2021.
Federal trials are not televised but our broadcast team is able to give you a virtual account of what is taking place as the former president goes on trial. With a jury now in place, the government’s lead prosecutor will present his opening statement. Wait, he is about to begin. Let’s go listen.
* * *
Good morning members of the jury. The people of Washington, D.C., indeed the citizens of America, thank you for serving here on this momentous but sad day. The people of the United States have been forced to confront and charge our 45th president with inciting thousands of citizens to storm the Capitol on Jan. 6.
It was the first time since 1814, that the revered U.S. Capitol was invaded. And it was certainly the first time such invaders were inspired, nay, asked (!) by the President to resort to violence to get their political way which, in short, was to stop the U.S. Congress from certifying that the defendant, Donald Trump, had lost the election of 2020, a fact he simply could not concede.
I’m sorry to say: the result of his exhortation caused the death of four people that day. I am sorry to say that two capitol police officers, who faced the brunt of the violence, committed suicide and that 140 people were injured, some seriously. And I’m sorry to say that $30 million in damage was done to the historic Capitol.
As much as anything, I’m sorry to say that because of Donald Trump’s inciting language — on January 6 and for many weeks before — democracy was left in tatters, the American people shocked and angered, and the world repulsed. Today we begin to lay out the case against the former president — and seek justice, as the law not only permits, but urges.
18 U.S. Code 373: Solicitation to commit a crime of violence. We will show Trump violated that law. You cannot “solicit, command, induce, or persuade” other persons to “use or threaten use of physical force against property or other persons.” It is the law.
We will show that the former president had one goal: to stop Congress from doing its solemn duty of certifying the election of Joseph R. Biden Jr. as the 46th president. Remember, Jan. 6 was the day the certification was to take place. In fact, the president moved up the date of his “rally” to coincide with the certification.
His first hope was that Vice President Mike Pence, even though it wasn’t in his power, would deny certification. When Pence refused, he called out his supporters, imploring them to storm the building and “fight like hell.” “Trial by combat,” his attorney Rudolph Giuliani called it. Once in the hallowed halls, the rioters could halt the certification. It was a coup attempt, fueled by a call to violence by the former president. A clear violation of federal law.
And we might as well get to the ex-president’s defense. He will invoke the 45 words of the Constitution’s First Amendment. He will say he’s free to attack the election as a fraud and a massive steal. And he is correct. That is his right.
But what he doesn’t have the right to do is cross over from protected speech to illegal conduct. To move from speech to action that led directly to the attack on the capitol. Free speech does not mean you can incite people to commit violence, a principle long established in law.
The defense will repeatedly cite the name Brandenburg because that’s the 1969 Supreme Court case when the court tersely ruled on incitement to violence. Incitement is not criminal, the court said, unless the government can prove the speaker intended to cause violence; that there was a likelihood that such violence would occur; and that the violence was imminent.
Remember, this is a charismatic person who has a special relationship with the followers he calls “the base.” His claimed Mexicans crossing the border were “rapists” and that white nationalists at Charlottesville, Virginia, were “good people.” Those claims endeared him to that base. They were ready to follow him anywhere. This is the president who had said for months, despite legal loss after legal loss, that the election was stolen. The former president lit the fuse to use the base to block a legal election.
The First Amendment in the U.S. Constitution is a beautiful thing, my fellow citizens; most of all it’s meant to protect important as well as trivial political speech.
Ladies and gentlemen, we’ve seen a riot at the U.S. Capitol and the failed impeachment of the 45th former president of the United States. But today we begin the trial of Donald John Trump for inciting a mob of thousands of insurrectionists to overrun, ransack the U.S. Capitol on Jan. 6, 2021.
 |
| Former Guy incited a mob of thousands of insurrectionists! |
This hypothetical trial begins in federal court in Washington, D.C.
Federal trials are not televised but our broadcast team is able to give you a virtual account of what is taking place as the former president goes on trial. With a jury now in place, the government’s lead prosecutor will present his opening statement. Wait, he is about to begin. Let’s go listen.
* * *
Good morning members of the jury. The people of Washington, D.C., indeed the citizens of America, thank you for serving here on this momentous but sad day. The people of the United States have been forced to confront and charge our 45th president with inciting thousands of citizens to storm the Capitol on Jan. 6.
It was the first time since 1814, that the revered U.S. Capitol was invaded. And it was certainly the first time such invaders were inspired, nay, asked (!) by the President to resort to violence to get their political way which, in short, was to stop the U.S. Congress from certifying that the defendant, Donald Trump, had lost the election of 2020, a fact he simply could not concede.
I’m sorry to say: the result of his exhortation caused the death of four people that day. I am sorry to say that two capitol police officers, who faced the brunt of the violence, committed suicide and that 140 people were injured, some seriously. And I’m sorry to say that $30 million in damage was done to the historic Capitol.
As much as anything, I’m sorry to say that because of Donald Trump’s inciting language — on January 6 and for many weeks before — democracy was left in tatters, the American people shocked and angered, and the world repulsed. Today we begin to lay out the case against the former president — and seek justice, as the law not only permits, but urges.
18 U.S. Code 373: Solicitation to commit a crime of violence. We will show Trump violated that law. You cannot “solicit, command, induce, or persuade” other persons to “use or threaten use of physical force against property or other persons.” It is the law.
We will show that the former president had one goal: to stop Congress from doing its solemn duty of certifying the election of Joseph R. Biden Jr. as the 46th president. Remember, Jan. 6 was the day the certification was to take place. In fact, the president moved up the date of his “rally” to coincide with the certification.
His first hope was that Vice President Mike Pence, even though it wasn’t in his power, would deny certification. When Pence refused, he called out his supporters, imploring them to storm the building and “fight like hell.” “Trial by combat,” his attorney Rudolph Giuliani called it. Once in the hallowed halls, the rioters could halt the certification. It was a coup attempt, fueled by a call to violence by the former president. A clear violation of federal law.
And we might as well get to the ex-president’s defense. He will invoke the 45 words of the Constitution’s First Amendment. He will say he’s free to attack the election as a fraud and a massive steal. And he is correct. That is his right.
But what he doesn’t have the right to do is cross over from protected speech to illegal conduct. To move from speech to action that led directly to the attack on the capitol. Free speech does not mean you can incite people to commit violence, a principle long established in law.
The defense will repeatedly cite the name Brandenburg because that’s the 1969 Supreme Court case when the court tersely ruled on incitement to violence. Incitement is not criminal, the court said, unless the government can prove the speaker intended to cause violence; that there was a likelihood that such violence would occur; and that the violence was imminent.
We will offer witnesses, documents and videos that prove all three of those elements. The President’s track record is nothing to be proud of. When he speaks in a city, violence often follows. Leading up the Jan. 6 conflagration, he said it would be a “wild” day and told aides the night before that 10,000 troops might not be enough to stop a melee. He knew what was coming. He was giddy the day of the riot, shocking even his closest aides as he sat by for hours doing nothing to help the capitol police.
We understand an incitement to violence prosecution will fail if the violence advocated is for some distant date. But the President spoke at noon, and the violence began an hour later. Oh yes, violence was imminent. And when he finally did address the rioters at 4:17 p.m., he ended saying, “We love you.”
As for likelihood that it would occur: we must look at the relationship between a speaker and those he exhorts to violence. These people — many of whom have been arrested— consistently say the president called them to Washington from all over the U.S. To say they were “chummed up,” like fish being fed bait, is an understatement. They will testify.
Remember, this is a charismatic person who has a special relationship with the followers he calls “the base.” His claimed Mexicans crossing the border were “rapists” and that white nationalists at Charlottesville, Virginia, were “good people.” Those claims endeared him to that base. They were ready to follow him anywhere. This is the president who had said for months, despite legal loss after legal loss, that the election was stolen. The former president lit the fuse to use the base to block a legal election.
The First Amendment in the U.S. Constitution is a beautiful thing, my fellow citizens; most of all it’s meant to protect important as well as trivial political speech.
But it was never meant to allow any person to stand at the gates of the Capitol and urge people to injure police officers and hunt down elected officials as we sadly saw on January 6.
Remember, this is a man who said publicly he could shoot someone on Fifth Avenue in New York city and get away with it. We need to make sure he does not get away with inciting and causing the death of four people on January 6.
* * *
We are back in the broadcast booth now. That was a powerful opening statement; the prosecutor held back little.
Remember, this is a man who said publicly he could shoot someone on Fifth Avenue in New York city and get away with it. We need to make sure he does not get away with inciting and causing the death of four people on January 6.
* * *
We are back in the broadcast booth now. That was a powerful opening statement; the prosecutor held back little.
We are here with Clay Calvert, an esteemed First Amendment scholar at the University of Florida. Professor, your thoughts?
“In my mind, there’s little doubt from a lay person’s point of view that Donald Trump stirred the pot and is the cause of the Jan. 6 insurrection and riot. But that is more impeachable than it is criminal. I am trying to assess here if his words meet the test of Brandenburg.
“Trump knew his audience and their state of mind. He knew trouble could ensue. But he dances around by never explicitly using words such as assault, harm or injure. But he doesn’t need the explicit terminology. The more the audience is riled, the less need to use explicit terms of violence.
It is a worthy case to make. Let’s hope that fear of prosecution will guard against future unlawful conduct.”
Rob Miraldi’s writings on the First Amendment have won numerous state and national awards. He teaches journalism at SUNY Paltz.
“In my mind, there’s little doubt from a lay person’s point of view that Donald Trump stirred the pot and is the cause of the Jan. 6 insurrection and riot. But that is more impeachable than it is criminal. I am trying to assess here if his words meet the test of Brandenburg.
“Trump knew his audience and their state of mind. He knew trouble could ensue. But he dances around by never explicitly using words such as assault, harm or injure. But he doesn’t need the explicit terminology. The more the audience is riled, the less need to use explicit terms of violence.
It is a worthy case to make. Let’s hope that fear of prosecution will guard against future unlawful conduct.”
Rob Miraldi’s writings on the First Amendment have won numerous state and national awards. He teaches journalism at SUNY Paltz.
https://www.njherald.com/story/opinion/columnists/2021/03/12/trump-and-capitol-riot-what-could-trial-look-like-opinion/6944952002/
Labels: 1814, Donald John Trump, January 6, New Jersey Herald, Rob Miraldi, Washington D.C.
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