The congressional select committee investigating the events of Jan. 6 concluded its business Thursday, when it issued its 845-page final report. Over the course of 10 public hearings, it produced a variety of witnesses and generated reams of evidence exposing the degree to which the violence that occurred on that day would not have happened but for the actions of former President Donald Trump.
An executive summary of the committee’s final report released on Monday provided readers with the committee’s theory of the case against Trump. Trump clung to the fabricated narrative that electoral malfeasance cost him his re-election, despite the contradictory evidence made available to him.
There are a number of reasons these particular charges are likely a legal overreach.
Regardless of what Trump wanted to believe or might have talked himself into believing, he had no reasonable expectation that his claims were true. Trump went on to pressure, coerce, and cajole state-level officials to manufacture evidence that would support his claims. His agitation whipped up a mob, elements of which had violent designs on the Capitol, according to written evidence produced for the president’s consumption.
Trump’s actions, the committee maintains, were knowingly unlawful. Accordingly, it has referred the president and other figures in his orbit to the Justice Department for criminal prosecution. The violations of statute the committee wants prosecutors to pursue include the obstruction of Congress, conspiracy to defraud the U.S. government and make false statements, and the incitement of violent “insurrection.”
But there are a number of reasons these particular charges are likely a legal overreach.
When it comes to the charges of conspiracy and obstruction, even the publicly available evidence contributes to a seemingly airtight case. Per said evidence, Trump and his legal team did try to disrupt legislative affairs up to and on that fateful day. The president and company did produce false statements they had every reason to believe were false. But the third charge — the allegation that Trump conspired to “incite,” “assist,” or provide “aid and comfort” to a “rebellion or insurrection” — is far trickier to prove than the former president’s critics seem to believe.
The committee alleges that Trump’s public comments regarding election fraud do not constitute protected speech in light of the violence they inspired, citing the findings of a federal court to justify the claim. Trump’s speech on the Ellipse on Jan. 6 contained “plausibly words of incitement,” U.S. District Court Judge Amit Mehta wrote earlier this year. The committee’s allegations are further substantiated by a vote of the “majority of the Senate” to convict the president of “incitement of insurrection” during his second impeachment trial.
Mehta rendered this verdict in a civil trial — Thompson v. Trump — in which a number of plaintiffs sued the former president and others for the emotional and physical injuries they suffered on Jan. 6. Those plaintiffs sufficiently satisfied the lower evidentiary bar reserved for noncriminal cases. And yet, the fighting words this judge deemed inciting — “we fight like hell,” “take back our country,” and “walk down Pennsylvania Avenue” — determined that they were “implicitly” designed to produce violence. Indeed, as Mehta continued, “it is reasonable to infer that he [Trump] would have known that some in the audience were prepared for violence.”
Now, via inference and implication, prosecutors are to convince a criminal jury that the president violated the standard of unprotected speech. Mehta summarily dismissed the cover Trump provided for himself by perfunctorily calling for his supporters to “remain peaceful,” but would a jury be as inclined to overlook those comments as they pertain to his intent? No criminal prosecutor would envy such a task.
The threshold for criminalizing speech is a high hurdle to clear. The seminal 1969 Supreme Court case on the matter, Brandenburg v. Ohio, established that it is not criminal even to advocate the violent overthrow of the U.S. government before a group of armed and menacing members of the Ku Klux Klan. Indeed, the courts have spent decades making it more difficult to prosecute people for “the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.” To convict Trump of incitement, prosecutors would have to prove to a jury’s satisfaction that Trump knew his followers were prepared for imminent lawlessness, that lawlessness was likely, and that it was his intention to incite them to violence. There’s a reason why the “Brandenburg test” is rarely applied.
If the Senate’s judgment in Trump’s second impeachment trial is relevant because a majority voted to convict, it is just as relevant that a supermajority vote to convict him failed to materialize. A clever prosecutorial team working off the information uncovered by the committee and subsequent investigations into the loose threads it explicitly left to the Justice Department to pull on could perhaps satisfy the “imminence” standard established in judicial precedent. But what about Trump’s intent? The former president had no reasonable expectation (as the day’s events demonstrated) that a violent mob would materially benefit him either politically or by somehow thwarting the certification of the 2020 election results. Moreover, as UCLA School of Law Professor Eugene Volokh fretted, the precedent established by Mehta’s verdict could expose many politicians to legal jeopardy if they happen to appear at an event in which even a handful of its attendees later engage in vandalism or resist police. That would doubtlessly be on the minds of those tasked with adjudicating a verdict against Trump on appeal. If the Senate’s judgment in Trump’s second impeachment trial is relevant because a majority voted to convict, it is just as relevant that a supermajority vote to convict him failed to materialize. Trump was, in fact, acquitted of the charges against him. We can only imagine what went through the minds of the Senators who voted for acquittal. But because we cannot read minds, it is just as reasonable to infer that their verdict was informed by the insufficient evidence presented by impeachment managers as much as the political disincentives Republicans wrestle with when they’re asked to break with Trump. As Rep. Jamie Raskin insisted during the president’s trial, “this case is much worse than someone who falsely shouts fire in a crowded theater.” This oft-repeated phrase is of dubious provenance and has no legal merit. It is a paraphrasing of a Supreme Court verdict authored by Justice Oliver Wendell Holmes in Schenck v. United States, and it justified the imprisonment of someone who authored a pamphlet opposing America’s involvement in World War I. The Espionage Act that the accused had violated was repealed two years later. Holmes himself dismantled his own logic in a subsequent dissent against a decision that resulted in the imprisonment of Russian migrants during the first Red Scare. Ultimately, the Supreme Court’s verdict in Brandenburg overturned the standard Holmes had set. The phrase exists today only to justify the censorship of protected speech. So, why did the Jan. 6 committee include “incitement” in its referrals to the Justice Department? Because this committee’s report is the work of politicians, it is by definition a political document. While the committee conducted itself admirably and made almost every effort to avoid the appearance of partisanship, its members all have constituencies to serve. If the Justice Department declines to pursue this or any other charge, those constituencies can now blame the excessive prudence of prosecutors for failing to pick up where the committee left off. Of course, the Justice Department could follow through with the committee’s recommendations in whole. Prosecutors might secure a conviction, and that conviction might be upheld through an appeals process that is sure to go all the way to the top. But the barriers before prosecutors are almost insurmountably high for a good reason, and a successful prosecution of Trump on these grounds would likely overturn the rules of engagement established in Brandenburg. No doubt, Trump won’t be the last public figure to run afoul of whatever standard succeeds it.
Noah Rothman
Noah Rothman is the associate editor of Commentary Magazine. 
