The Case for Prosecuting Donald Trump Just Got Much Stronger

I confess that I’ve been skeptical that the January 6 committee would produce evidence that Donald Trump was directly criminally responsible for the attack on the Capitol. Certainly he was morally and politically responsible. There’s no credible argument that a mob would have stormed the Capitol if he had the basic decency to concede a race he clearly lost. 

At the same time, it’s legally quite difficult to hold a politician responsible for the violence of his followers. The First Amendment is broadly protective even of political speech that outright advocates violence. There is (rightly) a very high constitutional barrier to criminally prosecuting any person for allegedly inciting violence. After all, the primary responsibility for a riot rests with the rioters—in the absence of direct command authority (like a general commands his troops), nobody can make a person riot. 

Before today, I’ve been open to the possibility that Donald Trump’s speech and conduct on and before January 6 criminally incited the mob. I was open, but unconvinced. I spoke to a number of leading First Amendment experts, and they were even less open than me. Yes, Trump urged the mob to “fight like hell” and march on the Capitol, but he also said they should “peacefully and patriotically” make their voices heard. That caveat was likely enough to spare him from prosecution.

That was yesterday’s analysis. Today’s is different. Because of a courageous woman named Cassidy Hutchinson, a former aide to Mark Meadows. 

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