A senior Justice Department official says there are no plans to indict Donald Trump or anyone else who spoke at a rally just before the Capitol building was breached by a pro-Trump mob.
Ken Kohl, a senior prosecutor in the U.S. attorney’s office in Washington, said, “We don’t expect any charges of that nature.”
This will no doubt be enormously unsatisfying to Democrats who long to see Donald Trump do a perp walk into the federal courthouse.
Overnight, in the wake of [police officer Brian] Sicknick’s death, Rep. Rosa Delauro, D-Conn., issued a statement saying that while “the mob who attacked the People’s House” must be charged, “those who instigated them” must also be held accountable.
Rep. Don Beyer, D-Va., issued a similar statement, saying that “those who brought about this awful crime must be prosecuted and brought to justice.”
The bar for prosecuting a public official for incitement is extremely high, explained another official.
A current Justice Department official called it a “moonshot” to suggest that “there’s any hook for criminal liability for Trump.”
“Encouragement can cause criminal liability, but it’s got to be … more than a politician making reckless comments to their base,” especially because a politician’s “blustery, incendiary comments” are often still protected by the First Amendment, the official said, speaking on the condition of anonymity because he was not authorized to speak publicly.
“[Even] if Trump were in communication with protesters who said, ‘We’re going to storm the Capitol,’ and Trump said, ‘Go for it,’ I don’t know if that gets you [to a criminal charge],” the official added.
There would have to be a slam-dunk case to indict Trump for inciting insurrection. Even Rudy Giuliani appears to be in the clear, despite urging protesters, “Let’s have trial by combat,” before they marched to the Capitol and tried to do just that.
Trump may escape criminal liability for his words, but Democrats are planning to include “incitement” in the articles of impeachment they’re drafting.
The article charges Trump with “willfully inciting violence against the government of the United States” with his comments at the rally outside the White House that it says “encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.”
Prosecutors are reluctant to build a case for incitement because the standard for proving guilt is so high. The Supreme Court decided in 1969 in overturning the conviction of a Ku Klux Klan leader for incitement that there had to be knowledge or intent that the words would lead to violent action.
Legal experts are doubtful that standard could be met.
“It looks to me like Trump was culpably reckless. But it seems to me the Brandenburg standard requires intention,” Koppleman said.
He said Giuliani’s exhortation sounded more like a metaphor than an incitement to violence. “It’s like the word fight. It’s often used as a metaphor. ‘Senator X is a fighter. He will fight for you,’” Koppelman said.
Trump has always been a man running toward a gasoline dump with a lit match. His purpose has been to act as a wrecking ball for society, breaking, smashing, and burning — metaphorically of course.
I doubt whether Trump’s intent was an insurrection. He riled up the crowd simply because he was capable of doing so as a demonstration of his power and influence. The problem has always been that he is playing with forces he couldn’t possibly understand and that, once loosed upon society, would wreak the kind of havoc we saw last week. These are forces that have always existed in the underbelly of American society. They are the flip side to democracy and order. Trump’s use of these forces to advance his political career and his presidency was bound to backfire.
And it did.
Trump may not have incited the insurrection. But his presidency created the conditions for it. That’s not a crime in any statute book. But it’s a crime against America and for that, all of us who underestimated him or dismissed him should pay a price.