“All of them – all of them were telling us, ‘Trump sent us.” In harrowing, heart-wrenching testimony before a House select committee established to investigate the events of Jan. 6, U.S. Capitol Police Sgt. Aquilino A. Gonell and his Capitol Police and D.C. Metropolitan Police Department colleagues described last week how those they witnessed violently breaching the Capitol explicitly pointed to then-President Donald Trump’s role in causing the insurrection.
Under the Anti-Riot Act, prosecutors have to prove two distinct questions: whether Trump caused the riot and whether he intended to cause the riot.
Although the court of public opinion may have found Trump guilty of inciting the Capitol riot, the case in federal court is much trickier. Under the Anti-Riot Act, prosecutors have to prove two distinct questions: whether Trump caused the riot and whether he intended to cause the riot. The officers’ testimony — which directly links Trump’s words to the rioters’ actions — may bring prosecutors one step closer to holding Trump legally responsible for Jan. 6.
While criminal charges remain unlikely because of the protections afforded to any speaker under the First Amendment and recent court cases that limit the scope of the Anti-Riot Act, the new evidence could help prosecutors to thread the needle. Specifically, the officers’ testimony could support the notion that Trump’s calls on supporters to reject Congress’ certification of the election were not merely the musings of a sore loser but were instead deliberately calculated to instigate violence and further his multifaceted strategy to overturn the election.
Trump’s potential involvement in an insurrectionist scheme was brought into even sharper relief by Friday’s revelations that he instructed Justice Department officials to “just say the election was corrupt” and “leave the rest to me.” This could be helpful in a criminal case to the extent that it demonstrates that Trump was connected to the outcome of disrupting the election results and taking action to achieve it, rather than just railing against the process. (Though the Justice Department was in GOP hands at the time, officials refused to follow Trump’s command because the allegations of voter fraud were false.)
Added to the Justice Department’s recent declaration that Trump’s allies in the executive and legislative branches could not invoke any privileges or immunities of their offices if Congress called on them to testify, and to the 2nd Circuit’s ruling that the Trumps could not evade a civil fraud suit via arbitration, the former president’s legal vulnerabilities are growing daily. Regardless of whether a sitting president enjoys immunity from federal criminal prosecution for crimes committed while in office, a former president does not enjoy such immunity.
Already, the House managers of Trump’s February impeachment trial rejected First Amendment objections to penalizing Trump for his Jan. 6 speech. The rioters’ statements might help reinforce this determination by enabling a prosecutor to invoke the First Amendment’s “fighting words” exception, which allows people who utter such words to be held responsible for the violence that flows from them.
While judges have narrowed this exception over time, the Supreme Court in 1942 originally defined “fighting words” as those that “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Importantly, these words must be “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Now, federal judges have limited the “fighting words” doctrine to cases in which a leader addresses “a mob already ripe for riot” and offers “an invitation to exchange fisticuffs.” Trump’s incendiary language and the actions it inspired may fit within this free speech exception. At his address before the Capitol riot, he chastised Republicans for “fighting like a boxer with his hands behind his back” and exhorted the audience to “fight much harder” and “fight like hell.”
But the obstacle of proving a causal link between a speaker’s words and the violence witnessed remains a significant one. Police officers’ testimony — that Trump’s followers not only enthusiastically embraced his invitation and immediately violently descended on the Capitol, but also saw his words as charging them to take this action — could be important in holding Trump accountable.
First Amendment conflicts have also limited the application of the Anti-Riot Act, intended to penalize those who incite mob violence. Congress cleared the Anti-Riot Act in 1968, against the turbulent backdrop of Martin Luther King Jr.’s assassination and intensifying protests against racial injustice and the Vietnam War. While the statute facilitated prosecutions despite constitutional challenges in its first few years — most famously in the trial of the Chicago Seven, most of whom were anti-Vietnam War protesters— it lay dormant for several decades.
The act’s 21st century resurrection has been just as divisive. Since the 2017 unrest in Charlottesville, Virginia, the Justice Department has charged both white nationalist terrorists and Black Lives Matter protesters under the act with mixed results. Along the way, federal judges on the 4th Circuit and in California have significantly limited the act’s scope, citing First Amendment concerns.
The Anti-Riot Act that remains in 2021 is severed, tattered and racially charged. The fact that it has been used to suppress free speech and target civil rights activists weighs in favor of its ultimate extinction. Still, it could be the best vehicle for pursuing criminal charges against Trump, and rioters’ statements help to strengthen the case.
As the 7th Circuit held in the notorious Chicago Seven case, an “organizational relationship between the hearers and the speaker or some other commitment by the hearers to follow the directions of the speaker” may help to prove the necessary causal link between provocative speech and resultant riot. The insurrectionists’ assertions that they were acting on Trump’s directive — that he “told” and “sent” them into battle — may qualify as the sort of evidence that courts have envisioned as passing muster. As they flew Trump flags and desecrated federal property, the rioters arguably demonstrated the “organizational relationship” and “commitment” that their leader intended, as well.
Ultimately, Anti-Riot Act prosecutions have been too few and too fraught for us to anticipate how a judge might weigh rioters’ statements. Supreme Court Justice Robert H. Jackson’s largely unanswered questions in 1951 pointing to the difficulties of prosecuting alleged inciters still ring true today: When is a speech “so provocative, insulting or inciting as to be outside of constitutional immunity”? As for that judgment, “Is it determined by the actual reaction of the hearers? Or is it a judicial appraisal of the inherent quality of the language used? Or both?”
The answer to Jackson’s questions will be crucial as the congressional hearings on the Jan. 6 riot continue and prosecutors observing the testimony scrutinize Trump’s involvement in organizing, participating in or carrying on the riot. Revelations that rioters acted not just in Trump’s name but at his direction could strengthen a criminal case against him — and help the government to heed Capitol Police Officer Harry Dunn’s emotional entreaty at last week’s opening hearing that we “get to the bottom” of who was really behind the hateful events of Jan. 6.