"Fight Like Hell:" Did Former President Trump Incite Violence and Does it Matter for his Impeachment Trial?

On January 6, 2021, as Congress prepared to certify the results of now-President Joe Biden's election in November, then-President Donald Trump held a rally near the White House. In his speech, Trump repeated numerous lies and distortions about the election with the usual brazen contradiction that dominated his time in office1 He ended his speech with a call to action, saying:

And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country. And I say this despite all that’s happened. The best is yet to come. 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.

Although we are all now familiar with what followed, it bears repeating it – both for its historical significance and to push back against right-wing disinformation about who was there and why. Following Trump's speech, his supporters marched to the Capitol Building. They gathered outside, some with a makeshift noose, some shouting “Hang Mike Pence,” some shouting anti-semitic and racist language. Then, a portion of the crowd charged the Capitol Police that were guarding the building and rushed in. There they unleashed an orgy of violence and vandalism. They stole computers2. They invaded the offices of lawmakers3. They attacked Capitol Police officers. They shattered windows. They scrawled graffiti on the doors. Most importantly, they forced lawmakers to flee and delayed the vote for certification of the results. As this happened, Donald Trump reportedly dallied in calling out the national guard to stop the insurrection.4Eventually, the police finally succeeded in removing the rioters from the building and the vote proceeded as planned. In the aftermath, there have been hundreds of arrests. As of the time of writing, 235 people are in custody for participation in the attempt to overthrow the government of the United States.5

Democrats began the process of impeaching Trump for the second time, an historic first, for inciting the insurrection.6 10 House Republicans voted with all Democrats to move the article of impeachment to the Senate, initiating a trial that will begin next week. The crux of the article is the following:

In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that 11the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States

The incident has raised a number of Constitutional questions about incitement and what constitutes protected speech under the First Amendment. These questions have gained additional relevancy because Trump's defense team have made the First Amendment an important part of their argument for why he should not be impeached. Finally, the whole situation, to me, raises a number of historical and contextual questions about free speech. This is a lot to cover. I'll start with some historical context, move on to whether legal scholars think Trump did commit incitement (and therefore lacked First Amendment protection for his speech), then highlight some additional legal arguments about Trump's First Amendment defense.

The most relevant precedent on the limits of free speech in regards to incitement comes from the 1969 decision of the Supreme Court of the United States in Brandenburg v. Ohio.7 In this case, a Klu Klux Klan member had called into a local radio station and asked a reporter to film one of their rallies nearby. The reporter did so, and the film showed the member, and others present, making a series of racist and anti-Semitic remarks. What caught the attention of Ohio authorities, though was the following language, “We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.” Brandenburg, the KKK member who made this statement was arrested under an Ohio statute that criminalized such speech as “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” His appealed his case to the Supreme Court which overturned his earlier conviction. The majority opinion held that, “Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U. S. 357, overruled.” This, in effect, created a two-part test to determine if speech that might be incitement is protected under the First Amendment. Speech lacks First Amendment protection under the Brandenburg test if, “The speech is 'directed to inciting or producing imminent lawless action,' AND The speech is 'likely to incite or produce such action.'”8

Brandenburg was a change for the Supreme Court. Earlier courts had largely upheld laws banning incitement in broad terms. Most notably, the court ruled in Abrams,Debs, and Schenck against socialists who pamphleted in opposition to the First World War. Cases following Brandenburg rejected these earlier decisions in favor of the new two-prong test.

The question for us then, is did Trump's speech on January 6th constitute incitement under the Brandenburg test? On the one hand, possibly. His instruction to “fight like hell” could easily be seen as a direction to incite lawless action. The location of the rally, so close to the Capitol Building, the firm belief of the audience that the election was stolen, the context of Trump's repeated claims of election fraud, and Trump's explicit instruction to march upon the Capitol could easily make a reasonable person believe that the speech was likely to incite violence.

Indeed, in a letter rebutting the former President's impeachment defense, 144 First Amendment scholars made exactly this point, writing:

President Trump’s speech, and the overall course of his conduct, advanced the factually baseless position that the election had been “stolen” and, further, that immediate action was necessary to prevent Vice President Pence and Congress from counting and confirming the votes of Electors that had been submitted (and certified) by the States. The evidence shows that President Trump deliberately assembled the crowd of supporters; that he steeled his supporters for action and knew that they were ready to take immediate action; that he directed them to take such immediate action; that President Trump said he would be with them in such action and supported such action; that he intended such action to accomplish the unlawful disruption of the constitutional processes of Congress in counting the votes of Electors and certifying the results; and that many persons in the mob that attacked Congress and the Capitol understood themselves to be doing exactly what President Trump had directed and intended for them to do.

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Yet, it is also possible that his words do not constitute incitement and some risk exists if we are too quick to pin it as such. In her op-ed for the New York Times, Chief Executive of PEN America Suzanne Nossel wrote:

In his rambling diatribe, Mr. Trump lied brazenly and made bellicose but ambiguous statements like “you have to show strength” and “if you don’t fight like hell, you’re not going to have a country anymore.” In calling upon people to join him in marching to the Capitol, he said that their goal would be to imbue Republicans with “the kind of pride and boldness that they need to take back our country.” He urged marchers to “peacefully and patriotically make your voices heard.” Mr. Trump never quite encouraged violence, legally speaking, and, as he had at the 2016 rally, put on record that the approach to resistance that he contemplated was peaceable.

To many, the context of the last four years made the eruption of violence on Capitol Hill seem anything but shocking, and the case for incitement in the colloquial — and the political — sense seems clear. But the strict legal test for incitement demands that the relationship between the targeted speech and the elicited action to be proximate, meaning that Trump’s long track record of prior incendiary statements cannot be grounds for a finding of incitement on Jan. 6. Evidence that violence was plotted ahead of time, and that some marauders set off for the Capitol before some of the president’s most inflammatory remarks, might also undercut any legal finding that Mr. Trump’s words were a primary cause of the havoc.

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Nossel continues that it would be unwise for progressives in particular to pursue legal charges against the President on First Amendment grounds, and cites the danger that might occur if the strict Brandenburg test is weakened. She highlights, in particular, statutes criminalizing anti-fossil fuel pipeline protests as possibly permissible under a world with a looser Brandenburg test. I am sympathetic to this point, although it bears noting that many such bills have already passed.11 State legislators do not need to use “incitement” charges to pass such legislation; they seem to have done so by declaring fossil fuel infrastructure essential in some way, and then heightening penalties for disruption or plans to disrupt.

It bears consideration, too, that if the Brandenburg test fails in Trump's case for the reason that Nossel points out – namely, that earlier in his speech he asks protestors to march peacefully – then almost nothing would ever fall under incitement. The difference between declaring to a gathered mob that “property is theft” in front of the home of a landlord, and giving the same speech with the addition of “and address it peacefully” seems minimal to me.12

I am not alone in this assessment. Even in the American Civil Liberties Union (ACLU), which is the group that argued on behalf of Brandenburg in his case, does not believe the standard would protect Trump's speech.13

My inclination, personally, is to think there is, at least, an initial case that Trump did incite the mob using unprotected speech. I'd prefer such a case be heard in the Supreme Court to clarify.

Whether the President actually incited the mob, however, is not an essential question to answer during impeachment in the Senate – no crime needs to be committed for the Senate to convict an elected official. Trump's lawyers have made a portion of their legal case on why the former President ought to be acquitted on a First Amendment basis, however, so there is more that needs to be investigated here.

The most important part of Trump's defense for our purposes here is the sections under “Answer 4,” “Answer 5,” and “Answer 6.”14 In “Answer 4,” the defense team responds to the objection that Trump repeatedly lied about the election leading up to the January 6 rally. They argue that such speech is protected under the First Amendment. In “Answer 5” the lawyers argue once more that Trump's false claims of election fraud at the rally were protected under the First Amendment. Finally, in “Answer 6” they argue that Trump did not incite the violent attack on the Capitol, arguing that the context of the former President's speech showed he did not intend violence.

Rebutting these defenses, 144 First Amendment scholars wrote an open letter stating that they felt these answers were woefully inadequate. Although there was only one article of impeachment – “Incitement of Insurrection,” these scholars break down the article into two related, but separate arguments. First that his conduct leading up to and on January 6th constituted a violation of his oath of office and second that this same conduct constituted incitement to insurrection. This is an important distinction because it is possible that Trump's conduct was not criminal but still violated his oath of office and thus warrants conviction.

The scholars argue first that the First Amendment is simply irrelevant when it comes to this impeachment trial because, as stated earlier, it does not matter if the conduct of the former President was unlawful. If Trump was perfectly within the bounds of the First Amendment in his speech, it does not follow that he cannot be convicted in the Senate. The First Amendment, and relevant jurisprudence only distinguish lawful from unlawful speech. It has nothing to say about other consequences for speech outside of criminal proceedings (and impeachment and conviction is not criminal).

Even if it did apply, however, they continue, it would not matter since – recalling the distinction we just made – the President can violate his oath of office without actually reaching the threshold of incitement. This argument rests on Trump's inaction during the riot, namely his failure to address the issue and instead, reportedly, watch it unfold on television. This is a failure to uphold his obligations under his oath of office even if his speech was not criminal.

Finally, the scholars conclude, Trump's speech might very well have been incitement on the grounds discussed earlier.

It is pretty easy to conclude that these scholars have a much stronger legal argument than Trump's defense team – who seem to think that the First Amendment is a “get out of jail free” card. It probably will not matter though, as impeachment is a political process in which legal arguments are convenient cudgels rather than serious statements. Nonetheless, it seems that he did incite violence, though the question of if he did or not is not necessarily germane to convicting him.