The buzzword of the last week or so for Democrats and the mainstream media has been “incitement.”
When Democrats talk about the breaching of the Capitol that took place last Wednesday, they couch their “incitement” allegations against President Trump in no uncertain terms. In their view, he did it, needs to be impeached, and kept from being able to hold public office again. Many supposedly “objective” reporters and news outlets have done the same, and without adding qualifiers to their reporting like “Democrats allege” or “legal experts say” and so forth.
But while The Usual Suspects are lining up lawyers to try and back up their claims that the speech Trump gave Wednesday amounted to inciting supporters to riot, and while it is assumed in media/Dem circles that the acting Attorney General may be considering whether or not to file charges against Trump, there are other legal eagles who are weighing in with much different takes. Their takes – at least in my view from the cheap seats – sound sane and far more Constitutionally grounded.
Jeffrey Scott Shapiro, a former assistant attorney general for the District of Columbia from 2007-2009, penned a piece in the Wall Street Journal in which he states that Trump’s speech doesn’t come close to rising to the level of “incitement” and that what he said is protected speech under the Constitution.
He started off by detailing his creds on the issue at hand:
The president didn’t commit incitement or any other crime. I should know. As a Washington prosecutor I earned the nickname “protester prosecutor” from the antiwar group CodePink. In one trial, I convicted 31 protesters who disrupted congressional traffic by obstructing the Capitol Crypt. In another, I convicted a CodePink activist who smeared her hands with fake blood, charged at then-Secretary of State Condoleezza Rice in a House hearing room, and incited the audience to seize the secretary of state physically. In other cases, I dropped charges when the facts fell short of the legal standard for incitement. One such defendant was the antiwar activist Cindy Sheehan.
After citing DC law on incitement and provocation, which was based on a 1969 Supreme Court case, Shapiro pointed out that Trump’s speech fell short of the requirements under DC law:
The president didn’t mention violence on Wednesday, much less provoke or incite it. He said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
District law defines a riot as “a public disturbance . . . which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.” When Mr. Trump spoke, there was no “public disturbance,” only a rally. The “disturbance” came later at the Capitol by a small minority who entered the perimeter and broke the law. They should be prosecuted.
George Washington University law professor Jonathan Turley has made similar arguments, as my colleague Nick Arama previously reported.
Another elephant in the room that the Democrats and the media are reluctant to mention is the timeline issue. According to CBS News investigative reporter Catherine Herridge, the first pipe bomb was said to have been found at the RNC around 12:45 as Trump was still giving his speech:
#CapitolBuilding From Acting US Attorney Michael Sherwin – two pipe Bombs, one near RNC + second, DNC “not a hoax” + “were viable,” ongoing forensics to identify bombmaker + whether timers rigged for max casualties IMAGES first reported @CBSNews pic.twitter.com/d4Sdg4SWy2
— Catherine Herridge (@CBS_Herridge) January 7, 2021
#CapitolHill NEW: Law enforcement report from 1/7 obtained @CBSNews lays out – what appears to be – a significant timeline. First pipe bomb at RNC called in at approximately 1245 as POTUS spoke at rally with a second device at DNC called in approximately 1315. NOTE: Timing + pic.twitter.com/G6qGWLbTB7
— Catherine Herridge (@CBS_Herridge) January 10, 2021
From that alone, along with the rioter who came prepared with zip ties, we can perhaps glean that the storming of the Capitol was likely pre-planned. In other words, it doesn’t seem likely that random rallygoers were just standing around listening to Trump’s speech and then got “incited” enough to leave and then make and plant pipe bombs.
There’s still a lot we don’t know and are still learning, but the “Trump incitement” argument is falling apart by the minute. That won’t stop revenge-minded Democrats in Congress, however, but as the Ben Shapiro saying goes, facts don’t care about your feelings.