As of 10 January, armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January.

Internal FBI bulletin obtained by ABC News

As President of the United States, Trump has lied to Americans for years.

In his ghost-written book, TRUMP: The Art of the Deal, President Trump packaged lies as truthful hyperboles. After his inauguration, truthful hyperboles became alternative facts. Soon thereafter, alternative facts became fake news, (in)famously beseeching to his beloved base to believe that what you’re seeing and what you’re reading is not what’s happening. Attacking the free press, the fourth pilar of US’s constitutional democracy, he accused it of being the enemy of the people. Simply, whenever the facts got in the way of President Trump’s narrative for the past four years, he, along with his enablers, have used every conceivable means to promote intoxicatingly repugnant falsehoods – however void of any credible evidence, however untrue, however incendiary.

That President Trump would attempt to overturn the election results if it did not go his way is no surprise. He clairvoyantly predicted the bogus self-fulfilling prophecy that if he lost the election it would have been because of fraud – that the elections were stolen from him. President Trump was given over 60 opportunities to prove his claims. All of his legal efforts failed because States, lawmakers, and others filing the lawsuits lacked standing or offered no evidence of election fraud. Simply, there is no credible proof of massive fraud supporting President Trump’s (and those of his sycophants, such as Senators Ted Cruz and Josh Hawley) claims of a stolen election.

When the Supreme Court rejected Texas’ lawsuit to overturn the election for lack of standing because it had no judicially cognizable interest in the outcome of the election in other states, President pivoted to, at best, what can be characterized as an abuse of power – though I would wager that he engaged in criminal and impeachable activity. From his taped telephone conversation, we heard President Trump cajoling, pressuring, and threatening the Secretary of the State of Georgia to find him some 11,800 votes to overturn the Georgia election results after three recounts proved no fraud.

When these efforts failed, President Trump lied, and lied, and lied, about how Vice President Mike Pence could constitutionally overturn the results of the election. But when Vice President Pence proclaimed in a statement his intent to follow his oath and the US Constitution to merely preside over the joint congressional ceremonial session of certifying the electoral college results, President Trump lied again, and again, and again, inciting his followers – who were already primed weeks in advance for the eventuality of not being able to manipulate the courts, or election officials, or the Vice President – to storm the Capitol to make it happen (overturn the election results). President Trump brainwashed his ardent followers (some who turned insurrectionists) by effectively claiming that the lack of proof is the proof – fraud was committed through such clever schemes that it was undetected by election officials, observers, cameras, or recounts. Finally, seeing the certification of the election results an impending fait accompli, President Trump, in outright abandonment of his presidential oath, called for insurrection and sedition. He asked the frenzied mob to take immediate action – action he knew would result in an assault on the Capitol, the legislators, and on democracy.

A criminal investigation is underway to see whether President Trump’s words motivated, encouraged, and agitated the mob attending his well-orchestrated rally to act. Based on his Tweeter feed, the traffic he generated on Parler (the preferred communication app of the far right extremists), and his visceral rhetoric laced with lies and false promises, President Trump knew or would have known that in that angry, lied-to, and disaffected crowd, there were members of the Proud Boys, Neo-Nazis, QAnon, the Ku Klux Klan, and other white supremacist groups, to name a few (one of these so-called patriots that Trump claimed to have loved sported a sweatshirt which had “Camp Auschwitz” on the front and “Staff” and “Work Brings Freedom” on the back. Having for years tapped into the bigotry, racism, intolerance, ignorance, fears, and insecurities of these right-wing extremists / domestic terrorists, President Trump was counting on them to act on his words, having convinced them of the big lie – they, they mob, could reverse the stolen election and have him sworn in for another four years.

In my previous post, I listed some of the criteria that Professor Richard Ashby Wilson set out based on his exhaustive study, which resulted in what I believe to be one of the best, if not the best text on incitement – Incitement on Trial (reviewed here). In an Op Ed piece for the Los Angeles Times, he lays out a cogent, persuasive, compelling case as to why President Trump should be held to account for inciting the insurrection and sedition, following President Trump’s words and call to action. A compelling read.

Op-Ed: The crime Trump committed in stirring up his mob
Soon after President Trump spoke at the Save America rally Wednesday, his supporters attacked the U.S. Capitol.
© Associated Press

JAN. 11, 2021
11:26 AM

For years, Donald Trump has been going right up to the line of inciting violence by targeting certain minority groups and individuals with his vitriol. I have argued previously that his speech did not constitute incitement.

On Wednesday, Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the electoral college vote results. He should be criminally indicted for inciting insurrection against our democracy.

The 1st Amendment protects legitimate political debate, including speech we may find repugnant, but it does not protect speech that incites a crowd to imminent lawless action.

Incitement law requires the presence of three elements. First, the speaker must directly advocate a crime. Trump summoned the crowd to the “Save America” rally in Washington with the words “Be there. Will be wild!” In his speech Wednesday, Trump encouraged those in attendance to march to the Capitol and “fight,” which constituted an explicit call to a lawless act.

There were a number of revealing characteristics of Trump’s speech. Trump said that Republicans had been too nice, like a boxer with his hands tied behind his back, which was understood by the audience that rougher tactics were needed. He said the crowd should fight “bad people” and added, “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

A court can also learn about Trump’s intentions by paying attention to what members of his entourage said at the same rally. Rudolph W. Giuliani urged “trial by combat” and Donald Trump Jr. warned Republican legislators, “We’re coming for you.”

Second, the crime being incited must be imminent, that is, about to happen. This element was fulfilled because Trump indicated that the crowd should march straightaway to the Capitol building, which they did immediately after his speech.

Finally, it must be quite likely that the crime being incited occur, and this requires an evaluation of the context of the speech. In this case, Trump is the idolized leader of a group of followers who have shown him extraordinary loyalty. Thus, his instructions and commands are very likely to be obeyed by his supporters. One Trump supporter said after invading the Capitol building, “Our president wants us here” and “We wait and take orders from our president.” Trump said several times that he would march to the Capitol with them, although he returned to the White House to watch events on television.

The emotional state of the crowd also matters. Trump has been disseminating disinformation and whipping up resentment against a “stolen election” for over two months. That violence and pillage ensued after his speech, including the tragic loss of life, was eminently foreseeable.

Incitement is an inchoate crime, which means that the speech act is the crime itself and no bad consequences need ensue. However, injurious consequences did follow from Trump’s exhortations and this fact helps prosecutors build a case for conviction in court.

Prosecutors could plausibly argue that had Trump not encouraged the unruly mob to march to the Capitol and “fight,” the criminal acts would likely have not occurred. The evidence strongly suggests that his words were causally connected to the subsequent harms, and this could satisfy the criminal law’s test of causation.

Trump could be indicted by the U.S. attorney’s office for the District of Columbia. Michael Sherwin, the acting head of that office, has confirmed that his office will pursue charges wherever the evidence leads them and that he has not taken indicting Trump off the table.

It remains an open question whether a sitting president can be indicted for a crime. But it is clear that Trump could be indicted for crimes committed during his time as president after he leaves office Jan. 20.

Even if the case against Trump were to fail, it is crucial that our system of law enforcement send the unambiguous message to Trump and his followers in the final days of his presidency that further incitement of violence and sedition will result in severe consequences.

I have studied war crimes tribunals for three decades and we must acknowledge the end of American exceptionalism and learn from the history of societies that lurch from civil unrest into full-blown civil war. A failure to respond to incitement of insurrection will only embolden those who wish to destroy our democratic system.

The law of incitement was designed to protect the public from exactly this kind of politics of violence. Prosecutors should not be reluctant to apply it to anyone — including a president — who has crossed this line.

Richard Ashby Wilson is associate dean of University of Connecticut School of Law and the author of “Incitement on Trial.” @richardawilson7


Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

Leave a Reply

Your email address will not be published. Required fields are marked *