By Mary McCord
Legal director at the Institute for Constitutional Advocacy and Protection
In tweets leading up to January 6, the president repeatedly urged his followers to come to the “big protest” in Washington, D.C., predicting that it would be “wild!” This was after two previous demonstrations in November and December featured Trump-supporting violent gangs assaulting people in the streets and destroying Black Lives Matter banners at historically Black churches.
At a January 4 rally in Dalton, Georgia, Trump claimed, among other things: “There is no way we lost Georgia. There’s no way. … That was a rigged election, but we’re still fighting it. And you’ll see what is going to happen.”
And on January 6, Trump addressed the crowd gathered in D.C. that morning, firing them up and urging action: “These people are not going to take it any longer. They’re not going to take it any longer. … We will never give up. We will never concede; it doesn’t happen. You don’t concede when there’s theft involved. … We will not take it anymore, and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal.”
It’s true that, at least in these public statements, the president did not explicitly demand that his supporters overrun the Capitol Police and violently take over the building to prevent the electoral votes from being counted. But these facts are enough to merit a criminal investigation into whether the president incited an insurrection in violation of federal criminal law. (Indeed, the acting U.S. attorney for the District of Columbia, where I was a prosecutor for nearly 20 years, has indicated that the conduct of “all actors” will be investigated.) They provide a predicate to further investigate the president’s knowledge and intent, proof of which would be needed for any criminal prosecution.
Evidence of intent—known as “mens rea” in criminal-legal parlance—is rarely proved by explicit statements. Rather, it is often a combination of circumstantial evidence that allows investigators, prosecutors, and juries to conclude that a person had the requisite mens rea for a crime. For those who violently assaulted law-enforcement officers, forced their way into the Capitol without authorization, destroyed property, and announced their intention to “stop the steal,” proof of intent is easy. For the instigators such as the president who didn’t do the physical dirty work, proof of intent is more challenging to establish, but not impossible.
The call-and-response relationship the president has had with his supporters over the past year offers evidence that he must have known the impact of his words on his followers. Last spring, for example, the president tweeted “LIBERATE MICHIGAN” in response to the Democratic Governor Gretchen Whitmer’s stay-at-home order, just after armed protesters—some of whom later were arrested for their plot to kidnap the governor—stormed the statehouse in Lansing as the legislature was considering whether to extend the state of emergency, attempting to intimidate lawmakers to bend to their will. Last summer, when the president threatened to designate “antifa” a terrorist organization while repeatedly blaming leftist “anarchists” for destruction of property during largely peaceful racial-justice demonstrations, far-right vigilante militias took it upon themselves to “protect” property, resulting in shootings and deaths in several American cities. And that same violent street gang that wreaked havoc in D.C. during “Stop the Steal” rallies in November and December did so after the president called on the organization by name during the first presidential debate to “stand by.”
Investigators would want to know what kind of briefings the president was given before January 6, and before other “Stop the Steal” demonstrations. Was he told about the threats of violence? Was he told about the intent to encircle and occupy the Capitol? Did he call on his supporters to “fight like hell” after learning that some of them were planning to bring firearms and other weapons to D.C.?
Investigators would want to obtain the president’s internet and social-media history—does it establish that he viewed content agitating for violence at the Capitol? Whether properly briefed on the threats or not, his own social-media use could give investigators clues as to his knowledge and intent at the time he encouraged the crowd to “never give up,” “show strength,” and “stop the steal.”
Business records—phone, email, and financial—could also be telling. Did the president or any of his surrogates have contact with any of the organizers or participants in the siege? Were there any monetary transactions that reveal connections?
And investigators would want to talk with those in the president’s inner circle (as well as those such as Georgia Secretary of State Brad Raffensperger, whom he attempted to coerce into committing election fraud). What was he saying about the will of his supporters? Did his comments reflect an intent to encourage the crowds that have shown up at state capitols and election offices protesting—sometimes with threats of violence—what they had falsely been led to believe was a fraudulent vote count? Did he say anything to suggest his desire for the demonstrators on January 6 to physically invade the Capitol and prevent the certification of the Electoral College results? To harm Vice President Mike Pence? What was the president’s reaction when he saw what was happening? Did he indicate that the mob had done just what he wanted?
Some people may wonder about whether some of this evidence would be protected by executive privilege and whether Trump would be protected from prosecution by presidential immunity, but neither of these protections is absolute, and constitutional separation-of-powers principles do not put the president “above the law,” no matter how much he may wish them to. Criminal prosecution ultimately may not be attainable, or desirable, but we won’t know until there’s an investigation.