Trump and the Riot on January 6

What can we say about former President Donald Trump’s rhetoric and the riot that occurred on January 6? Was he guilty of “incitement of insurrection”? Was the Senate right to acquit him of this charge?

Let’s begin by defining the key terms using Merriam-Webster’s Dictionary of Law. Incitement is “to move to action: stir up: spur on: urge on.” In particular, incitement is urging on “unlawful behavior.” The specific unlawful behavior in this case is insurrection. Insurrection is defined as “the act or an instance of revolting especially violently against civil or political authority or against an established government.”

Did Trump stir up or urge people to revolt against the US government?

Here’s what we know.

I. Trump had been claiming election fraud for years.

• After Obama’s victory in 2012, he said, “This election is a total sham and a travesty. We are not a democracy!”
• He claimed Ted Cruz only won in the 2016 Iowa Caucus because of fraud: “The State of Iowa should disqualify Ted Cruz from the most recent election on the basis that he cheated – a total fraud!”
• After his victory in 2016, he claimed that Hillary Clinton received millions of illegal votes. He tweeted, “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.”

If nothing else, this history shows that anything Trump says about elections should be taken with a huge grain of salt. He has a history of claiming “FRAUD.”

II. Prior to the 2020 presidential election, Trump spread doubts about the integrity of the election.

• On July 30, he tweeted, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”
• In Wisconsin on August 17 he said, “The only way we’re going to lose this election is if the election is rigged, remember that.”
• He repeated the same assertion on August 24 at the Republican National Convention: “The only way they can take this election away from us is if this is a rigged election.” Thus, Trump stated months in advance that he was not going to accept an outcome in favor of Biden. According to Trump, any such outcome was automatically rigged.

III. After Biden was declared the winner on November 7, Trump remained true to his previous statements and declared that the election was rigged. 

• On November 16, Trump tweeted, “I won the Election!”
• On December 15, he said, “Tremendous evidence pouring in on voter fraud. There has never been anything like this in our Country!”
• At 8:17 a.m. on January 6, Trump tweeted, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”
• At 9:00 a.m. on January 6, he tweeted: “They just happened to find 50,000 ballots late last night. The USA is embarrassed by fools. Our Election Process is worse than that of third world countries!”
• At 9:15 a.m. on January 6, Trump tweeted: “The States want to redo their votes. They found out they voted on a FRAUD. Legislatures never approved. Let them do it. BE STRONG!”
• Trump’s rally speech on January 6 focused on election fraud. Near the beginning, he says:

“All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing. And stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up, we will never concede. It doesn’t happen. You don’t concede when there’s theft involved.

Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.”

He continues, “Over the past several weeks, we’ve amassed overwhelming evidence about a fake election. This is the presidential election. Last night was a little bit better because of the fact that we had a lot of eyes watching one specific state, but they cheated like hell anyway.”

He then makes specific claims of voter fraud in Pennsylvania, Georgia, Michigan, Nevada, and Arizona.

• At 6:01 p.m. on January 6, Trump tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

As he did many times previously, Trump was still claiming that he won in a “landslide” after the riot, calling it “a sacred landslide election victory” that was “viciously stripped away from great patriots.” Additionally, notice how he links the illegal events of January 6 with his claim of an unfair election— “These are the things and events that happen when . . .” By this time he knew full well the damage that was caused at the Capitol. In Trump’s mind, the violence at the Capitol was a direct consequence of an unfair election.

IV. Trump encouraged his supporters to protest in D.C. and specifically at the Capitol on January 6.

• On December 26 he tweeted, “The ‘Justice’ Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud, the biggest SCAM in our nation’s history, despite overwhelming evidence. They should be ashamed. History will remember. Never give up. See everyone in D.C. on January 6th.”
• On December 19 he tweeted, “Big protest in D.C. on January 6th. Be there, will be wild!”
• At his Save America Rally on January 6, he encouraged the crowd to walk down to the Capitol:

“So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.

The Democrats are hopeless — they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re 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.”

V. Trump wanted the crowd to protest at the Capitol on January 6 because he wanted the crowd to influence the Electoral College certification process.

• In his January 6 speech he said:

“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, we’re going to walk down.

Anyone you want, but I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.

Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

What did Trump want the crowd to do?

• • Walk to the Capitol.
  • Cheer on brave senators and congressmen and women.
  • Show strength and be strong.
  • Demand that Congress do the right thing.
  • “Peacefully and patriotically” make their voices heard.

VI. Trump also wanted Mike Pence to stop the certification process by sending the votes back to the States to be re-certified.

• In his January 6 speech, Trump said, “And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.” And “I hope Mike Pence will do the right thing. Because if Mike Pence does the right thing, we win the election.”
• At 2:24 p.m., about ten minutes after Mike Pence was evacuated, Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

VII. Many people in Trump’s audience listened to his instruction and walked to the Capitol.

VIII. Some breached the Capitol wearing Trump’s name and chanting his slogans, along with “Fight for Trump” and “Hang Mike Pence.”

• The certification process began at 1:00 p.m. with Pence presiding.
• The crowd broke through police security at 1:45 p.m.
• Rioters broke into the Capitol at 2:13 p.m.

 IX. Trump did the following after the Capitol was vandalized:

•  Disparaged Mike Pence in a tweet at 2:24 p.m.
• Tweeted “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” at 2:38 p.m.
• Tweeted “remain peaceful” at 3:13 p.m.
• At 4:17 p.m., he expressed sympathy for the protestors and continued to insist on election fraud in a video: “I know your pain, I know you’re hurt. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. . . We love you, you’re very special. . . ”
• At 6:01 p.m. he tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Major Points

First, Trump’s claims of voter fraud fueled the events of January 6. That was why the crowd was protesting at the Capitol. However, in over 60 lawsuits, Trump’s claims of election fraud were rejected or dismissed. His “tremendous evidence” of fraud was never produced to the satisfaction of any judge. If you remove the fuel of “fraud,” protestors would not have been at the Capitol.

Second, the crowd was at the Capitol on January 6 because Trump told them to walk to the Capitol in his speech. Why? He wanted them to “peacefully and patriotically” make their voices heard to the senators and congressmen and women.

Third, Trump wanted Mike Pence to stop the certification process and he pinned the crowds’ hope on Pence, stating, “Mike Pence is going to have to come through for us.” When some people in the crowd realized that Pence was not going to come through for them, they became more agitated. Consider the following aspects of their mindset:

• There has been massive voter fraud.
• We need Pence to stop the certification process and send this back to the States.
• Pence failed us.

Of course, just because people are brought to a point of desperation doesn’t mean they have to commit violence. The majority of protestors remained peaceful and didn’t enter the Capitol building. The two groups of people—those who entered the Capitol and those who remained outside peacefully—simply shows that some people were more willing to take action than others. It also shows that Trump was not a puppet master, forcing people to charge into the Capitol against their will. Even if Trump is guilty of incitement that does not absolve people from personal responsibility.

But what about Trump’s claim that Pence could intervene? According to this explanation, that is also false.

The law governing the certification process, the Electoral Count Act of 1887, specifically limits the power of the president of the Senate precisely because a president of the Senate had intervened in the count previously. In 1857, after James Buchanan’s win, the Senate president overruled an objection against Wisconsin electors who had been delayed in their certification process by a snowstorm in 1856.

One of the points of the Electoral Count Act is to constrain the vice president given this earlier episode and make it clear that he’s a presider, not a decider,” said former Federal Election Commission Chairman Trevor Potter, president of the Campaign Legal Center.

This was essentially how Pence understood his role on January 6. In his letter he said, “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”

Fifth, while Trump was claiming fraud, he was actively involved in seeking to perpetrate a fraud. In a phone call on January 2, he pressured the Georgia Secretary of State and the Governor to find the votes he needed.

Sixth, Trump never told the crowd to break into the Capitol. He told them to “peacefully and patriotically make their voices heard.” Yes, he also said, “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” But we cannot say for certain that Trump meant “fight” to be taken literally. We can say that his use of the word “fight” in that setting was reckless. (Don’t forget that he was also speaking at around lunch time. I have wondered how much hunger played a role in the events that followed.)

Seventh, Trump’s response to the violence was slow and weak.

• He finished his speech at 1:10 p.m.
• The Capitol was broken into at 2:13 p.m.
• At 2:28 p.m. he tweeted “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
• He tweeted “remain peaceful” at 3:13 p.m.
• At 4:17 p.m. he told them to go home.

Telling people who had attacked police officers, smashed windows, and chanted “Hang Mike Pence” to “stay peaceful!” and “remain peaceful” is an extremely inept response, especially for someone who is known for speaking his mind. Additionally, his tweet at 6:01 p.m. shows his perspective on the violent events:

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Trump believed the events that unfolded on January 6 were justified and the day should be commemorated forever.

Imagine being the President, seeing the Capitol vandalized by an angry crowd, with people you know personally inside the building—senators, congressmen and congresswomen. How would you have responded? When would you have responded?

Summary

Here’s what we know Trump did and didn’t do:

• He claimed there was election fraud for years.
• He claimed he could only lose the 2020 election if it was rigged.
• After the 2020 election results were announced, he claimed the election was rigged.
• He did not concede to Joe Biden.
• He encouraged people to come to a protest in D.C. on January 6.
• He told the crowd on January 6 to walk to the Capitol during the Electoral College certification process and show strength. He also said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
• He pressured Mike Pence to object to the certification process.
• He pinned the crowd’s hope on Mike Pence, who he said, could stop the certification process.
• He didn’t immediately call for violence to end at the Capitol on January 6. Overall he seemed pleased with how events unfolded: “Remember this day forever!”

Analysis

Trump had a two-pronged plan to interfere with the Electoral College certification process on January 6—get Mike Pence to object and get the crowd to protest at the Capitol. Although Pence had already indicated that he would not object, Trump did not know with 100% certainty what Pence would do. So he repeatedly urged him to object. Pence was under an incredible amount of pressure. Imagine if your boss was urging you to do something and that boss was the President. Now imagine if your President boss was urging you to do that thing in front of large crowds and to millions of people on Twitter.

So what could Trump have possibly been thinking about the two components of his plan?

1. Pence will object and the crowd at the Capitol will cheer.
2. Pence will not object and the crowd outside the Capitol will demand justice.

He was hoping that the first scenario would occur because that would be the most straightforward way of achieving his objective. What was he thinking the crowd would do in scenario two? I don’t see how he could have known that US citizens would break into the Capitol. That had never been done. My guess is that he was envisioning a crowd chanting outside and carrying on a lengthy protest, perhaps even berating senators and congresspeople. In any case, he should have seen that scenario two puts his vice president on a collision course with the crowd.

Conclusion

Does all of that equal “incitement of insurrection”? Did Trump provoke or urge unlawful action? On the one hand, he didn’t tell the crowd to commit acts of violence. He never said, “storm passed the police and break into the Capitol.” He did say, “peacefully and patriotically make your voices heard.” On the other hand, he gave people something to be angry about—election fraud and Mike Pence not objecting—invited them to D.C., and told them to walk to the Capitol during the government’s official certification process in the Capitol. If this is not “incitement of insurrection,” it is as close as you can get.

In the end, everything hangs on definitions. Senator Bill Cassidy voted to convict Trump of “incitement of insurrection” because he defines that phrase this way: “The attempt to prevent the peaceful transition of power.” Trump clearly wanted Pence and the crowd to interfere with the final certification of results, and, in that way, he was trying to prevent Biden from becoming president. In Trump’s words, he wanted the crowd “to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.” Cassidy’s definition appears to have made his decision fairly easy—he said he voted to convict Trump “because he is guilty.”

So is Trump guilty or not guilty of “incitement of insurrection”? If “incitement of insurrection” means explicitly telling people to break through security and stop the certification process, Trump is not guilty. If it means giving people a reason to be angry, sending them to the steps of the Capitol during a key moment in the transfer of power, and pressuring your vice president to do something he does not have the power to do to stop that process, Trump is guilty.

Either way, without Trump’s rhetoric there would have been no storming of the Capitol on January 6.