Last week President Donald J. Trump was acquitted by 43 Senators in his impeachment trial for his role in “incitement of insurrection.” With the conclusion of the congressional trial, however, federal prosecutors could still charge Trump with criminal offenses. Charges against Trump could include inciting a riot and advocating for the engagement of illegal activities such as insurrection. However,  what exactly is the legal definition of incitement? How could Trump be charged with it, and what are the possibilities such a conviction would occur? 

The answers to these questions are rooted in the 50-year-old Supreme Court case, Brandenburg v. Ohio (1969). In Brandenburg, the Court established a two pronged test to determine if speech raises to the level of incitement. The speech must be both (1) intended and (2) likely to produce imminent lawless action. If not, it is free speech which is protected by the First Amendment. If so, it is not protected, and the speaker can be prosecuted under the law.

There are several specific laws Trump could be charged with. The District of Columbia specifically has its own laws against rioting or inciting a riot. Under D.C. Code § 22-1322, Trump could be charged with “incit[ing] or urg[ing] other persons to engage in a riot” which is defined by “an assemblage of 5 or more persons” that is “tumultuous” or “violent.” Title 18 U.S.C § 373 of the federal code also makes illegal the action of “soliciting, commanding, inducing, or [to] otherwise endeavor to persuade such other person[s] to engage” in illegal activities. Either way, both of these charges contain similar elements and standards that Trump may have broken. 

So is Trump guilty of breaking these incitement laws? There is no easy answer to this question. To prove Trump guilty, prosecutors would have to connect the totality of the circumstances to both requirements of the Brandenburg test to answer two key questions:

Did Trump intend to incite illegal acts of violence? 

Criminal intent, conventionally known in legal terms as mens rea, requires the defendant to act knowingly and purposefully to obtain a certain result. To prove that Trump intended to incite a riot or insurrection, prosecutors would have to prove that Trump’s actions were made knowingly and purposefully to elicit violence at the Capitol. 

Perhaps the one piece of evidence regarding Trump’s state of mind that prosecutors could use at trial is one particular tweet he sent out one hour after the riots started. Although Trump’s tweets have all but been deleted, the tweet saved by ProPublica reads, “these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.” While this tweet might not point to any purpose, Trump’s remarks that “these are the things and events that happen…” hints at a degree of foreseeability, and at least show that Trump was aware of the consequences of his rhetoric. 

Additionally certain circumstantial evidence and statements Trump has made can speak to his mental state. For example, one report from The Washington Post, details an FBI warning of violence at the Capitol on January 5^th. Similarly, multiple intelligence reports caution of rising right-wing violence months leading up to and after the inauguration. If Trump was conceivably briefed and aware of these reports, his awareness could be evidence to satisfy the elements of foreknowledge of impending violence.

Ultimately, when it comes to the question of if Trump acted purposefully, a prosecutor’s case would inevitably be built on a logic and evidence that contains elements of speculation. There are no secret tapes or whistleblower testimony that reveals Trump’s motives. Trump could have intended his speech to elicit violent action, but also could not have intended to incite a riot or insurrection. There is not enough evidence to say for certain. Simply put, prosecutors do not currently have the facts to prove Trump’s specific intent.

However, this uncertainty may still be threatening for Trump. In their search to find evidence to prove intent, prosecutors could open the door to a wide range of investigations into Trump’s discussions with his advisors, his reaction at the time of the violence, or other dialogue he had with others that were tangentially involved in the Capitol violence as well. In the well-known Supreme Court case U.S. v. Nixon (1974), the Court established that neither presidential immunity, a doctrine of qualified immunity that protects the president’s official acts in office, nor executive privilege, “the right of the president and high-level executive branch officers to withhold information,” allow the President to withhold information in a criminal investigation. An investigation into Trump’s intent could reveal particularly sensitive exchanges that would have previously been thought to be private. Furthermore, although character evidence — which is used to persuade the jury that a defendant is a  “bad guy” — is not typically allowed at trial, character evidence is admissible when used to prove the specific intent of a defendant. Like the exception to executive privilege, this exception to the inadmissibility of character evidence could potentially allow prosecutors to expose unpleasant and disparaging evidence of Trump’s character in hopes of swaying a jury against Trump merely based on his character.

Was Trump’s speech likely to elicit lawless action? 

When it comes to this second element of the incitement charge, the facts are a little more clear cut. On January 6^th, in front of thousands of supporters several hours before they attacked the Capitol, Trump gave a speech where he told his supporters “we fight, we fight like hell,” and “if you don’t fight like hell you’re not going to have a country anymore.” He also declared that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” While several have argued that these statements prove Trump incited a riot, to prove Trump guilty of incitement in a criminal trial, prosecutors would inevitably have to overcome a strong argument from a Trump defense that this rhetoric was merely overheated and inflamed “political speech” and not explicit advocacy of violence. Trump has been using speech like this in his rallies since his candidacy. Moreover, Trump notably advocated for peaceful protest several times in his January 6^th speech. In the end, while Trump’s rhetoric was clearly irresponsible, prosecutors’ jobs of proving actual solicitation is not so easily made.

One area that could strengthen prosecutors’ attempts to link Trump’s speech to an actual solicitation, lies in the context and surrounding circumstances. In the days leading up to January 6^th, the political climate had become extremely polarized. Trump had accused several states and election officials of corruption and threatened possible criminal prosecution. Additionally, speakers before Trump used inciteful rhetoric to the same crowd of supporters, such as Rudy Giuliani’s comment that “let’s have trial by combat.” Furthermore, in videos of supporters at Trump’s January 6^th speech, Trump’s supporters can be heard agreeing with Trump’s rhetoric and shouting back “storm the Capitol… take the Capitol… invade the Capitol.” All of these circumstances give added context and weight to the likelihood that Trump’s speech at the very least, encouraged the January 6^th attack on the Capitol. With all this said, what are the possibilities a conviction would occur? It is pretty safe to say, it is low. Merely indicating and charging Trump would be a first. An indictment of Trump would be sure to rile up political sentiments and force any trial to be intrinsically partisan. Even if Trump was charged, as a matter of most criminal trials, in order for Trump to be guilty of incitement the prosecution would have to prove him guilty beyond a reasonable doubt. Anyone that has served on a jury, knows that this burden of proof is a most significant task which requires almost absolute certainty of guilt. For Trump to be guilty, he would have to be guilty of both requirements of the Brandenburg test beyond a reasonable doubt, an extremely difficult bar for the prosecution to prove. In the end, if prosecutors do decide to prosecute Trump it will be up to a jury to decide the incredibly complex question of if Trump’s actions rise to the level of illegal incitement.