Did Trump Commit a Crime When He Riled Up His Supporters Before They Rioted?

The inflammatory speech that Donald Trump delivered to thousands of his most passionate followers shortly before hundreds of them attacked the Capitol was an act of egotism and recklessness that stood out even in a presidency suffused with both. Was it also a crime?

“The Justice Department said on Thursday that it would not rule out pursuing charges against President Trump for his possible role in inciting the mob that marched to the Capitol, overwhelmed officers and stormed the building a day earlier,” The New York Times reports. Michael Sherwin, acting U.S. attorney for the District of Columbia, told reporters, “We are looking at all actors, not only the people who went into the building.” When he was asked whether those “actors” might include the president, he replied, “We’re looking at all actors. If the evidence fits the elements of a crime, they’re going to be charged.”

It seems pretty clear that Trump’s behavior, while outrageous and irresponsible, does not fit the elements of a crime. Under the Supreme Court’s First Amendment precedents, inflammatory speech can be punished only in narrowly defined circumstances that go beyond what happened on Wednesday. Under federal law, incitement to riot does not include “advocacy of ideas” or “expression of belief” unless it endorses violence, which Trump did not do.

The Times nevertheless reports that Trump “suddenly realize[d] he could face legal risk for prodding the mob,” which persuaded him to record the message he posted on Twitter yesterday, in which he unequivocally condemned the rioters for the first time without reiterating the stolen-election fantasy that motivated them. After insisting in his pre-riot speech the day before that “we will never give up” and “we will never concede,” a seemingly chastened Trump did just that, saying, “A new administration will be inaugurated on January 20th.” He added that “this moment calls for healing and reconciliation.”

It was a bit late for that. For more than two months, Trump insisted, over and over again, that he actually won the election by a landslide, that Democrats deprived him of his rightful victory through a massive criminal conspiracy, and that letting them get away with it would destroy democracy and ruin the republic. That message culminated in Wednesday’s incendiary speech, during which the president addressed the angry supporters who had gathered for a Trump-promoted “Save America March” aimed at preventing President-elect Joe Biden from taking office.

Trump began his rant an hour before a joint session of Congress convened to ratify Biden’s victory. Railing against “this egregious assault on our democracy,” he urged his followers to “show strength” and “take back our country” by “marching over to the Capitol building” and “demand[ing] that Congress do the right thing.” The “right thing,” according to Trump, was overturning the election results