Did Trump incite a riot by his speech on January 6, 2021?
I haven’t been asked to represent the President, but if he did ask, this is what I would say in his defense.
Per federal code, it’s a crime when an individual “travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent” [to]:
1. Incite a riot;
2. Organize, promote, encourage, participate in, or carry on a riot; or
3. Commit any act of violence in furtherance of a riot; or
4. Aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot.
A federal building is considered per se in interstate commerce.
Rioting, Inciting to Riot, and Related Offenses:
A riot is a type of civil disorder that results in a public disturbance against authority, property, or people. Riots typically involve violence or the destruction of property, though the term is also used in connection with “unlawful assembly.” Although citizens have the right to free speech and peaceful assembly found in the First Amendment to the Constitution, cities can regulate the right to demonstrate by requiring permits or limiting demonstrations to a designated area.
Apart from the charge of rioting, which covers the destructive or disruptive acts themselves, there are a number of associated crimes that may also be charged.
• Incitement to riot is when a person encourages others to commit a breach of the peace without necessarily acting themselves. This may involve statements, signs, or conduct intended to lead others to riot.
Here are some excerpts from Trump’s speech on 1/6/2021 which relate to going to the Capitol to demonstrate:
“We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.
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’re never voting 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”.
At no time did the President tell or encourage people to storm, break in or even enter the Capitol building, and at no time in his speech did he ask or suggest that anyone act violently or with force. The only time he described the actions he expected to see from the crowd was “marching over to the Capitol building to peacefully and patriotically make your voices heard”.
Hence, there is no way this constitutes incitement of a riot. He encouraged peaceful and patriotic actions. His speech was what the courts call political speech protected by the first amendment to the Constitution.