No, Donald Trump Did Not Incite An Insurrection…Democrats and their media allies are milking a tragic riot for all it’s worth.

 
By David Marcus

The Democrats and their media allies are trying to convince the American people that President Donald Trump is guilty of inciting an insurrection last week. In both legal terms and in terms of the plain meaning of the English language, their claim is absurd on its face. There are two fundamental reasons for this: Trump did not incite the riots at the Capitol, and the riots were not an insurrection.

The Standard for Incitement

Legally speaking, incitement has an incredibly high bar that none of Trump’s actions since the election come close to meeting. These standards were set by the Supreme Court in its landmark Brandenburg v. Ohio case. Among other things, the decision held that in order to constitute incitement to violence, speech must include intent and specific, not abstract, instructions to act. It also required that the speech in question would likely produce “imminent lawless action,” which went a step further than the previous legal tests for incitement. According to the ruling:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So as a legal matter, this seems pretty clear. But what about more generally? In Salon, Amanda Marcotte attempts to make a case that Trump incited an insurrection. She starts with a big claim: “There is no doubt Donald Trump incited the insurrection on January 6. It happened largely in public and is recorded for posterity. Let’s review the record.” But only a paragraph later she writes, “[T]he people who stormed the U.S. Capitol armed with guns, pipe bombs and flex cuffs to take members of Congress and Vice President Mike Pence hostage understood Trump’s wink-and-nudge style loud and clear.”

One cannot incite with a wink and a nudge — not unless those gestures have already been specified to mean a call to violence. In this case, nothing Trump said at his speech before the violence broke out was a specific call for violence, much less insurrection. Part of how we know this is that the vast, vast majority of those who attended his speech (where he called literally for a peaceful protest at the Capitol) did not engage in any violence whatsoever.

What Trump asked his backers to do was to make their voices heard in support of the members of Congress who were working to ensure that the election was a fair one. What happened next was a chaotic mess caused by a small number of violent agitators, a complete and total breakdown of security at the Capitol, and a poor response once things began to get out of hand. Some of that poor response was owing to the fact that the events were surprising. If it was so bloody obvious that Trump was telling people to storm the Capitol, why were we all so shocked and caught off guard when some people did?

This Was No Insurrection

So much for incitement. As to insurrection, at no point was the overthrow of the government of the United States even a remotely possible outcome, not even close. Those cosplaying idiots taking selfies in Speaker Nancy Pelosi’s office and parading around with podiums had no intentions of forming a new government. This was an expression of anger, not a realistic, organized coup attempt. Anyone among the rioters who believed their actions would result in the overthrow of the government, if there were any, were delusional to the point of insanity.

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