GOP senators said Trump was culpable, but he’s a “private citizen” now. Fine — indict him like one.
Trump
was acquitted. But the Senate hardly absolved him: A 57-to-43 majority
concluded he had incited a riot.
Few
if any of those who voted to acquit did so because they considered Trump
innocent of the charge. Rather, after refusing to hold the trial while he was
still in office, they relied on the technicality that Donald Trump is
now “a private citizen.”
All
the more reason, then, to hold Citizen Trump responsible under criminal law for
his effort to overthrow our democracy by force. Maybe it’s time for him to face
12 jurors.
Many
Republicans agree Trump was responsible for the sacking of the Capitol.
“There
is no question, none,” said GOP Senate leader Mitch McConnell, “that President
Trump is practically and morally responsible for provoking the events of the
day… A mob was assaulting the Capitol in his name. These criminals were
carrying his banners, hanging his flags and screaming their loyalty to him.”
Similarly,
GOP House leader Kevin McCarthy concluded, “The president bears
responsibility” for the “attack by mob rioters.”
Donald
Trump whipped up his supporters, including violent white
supremacists he had previously instructed to “stand by,” and incited them to
march to the Capitol, “never give up,” “fight much harder,” and “fight like
hell” — as hard as it took to “stop the steal.” That meant: Do whatever
it takes to force Congress to set aside Joe Biden’s election victory.
A
few political leaders have called for an indictment, but not many. Perhaps they
don’t want to politicize criminal law enforcement.
But
silence is still political. It reflects a presumption of impunity for
presidents and other high officials. It’s the same impunity that protected
Richard Nixon from being charged with conspiracy to commit burglary and
Bush-era cabinet officials from being charged with conspiracy to commit torture
following 9/11.
The
First Amendment protects offensive and controversial speech, even Trump’s
“right” to utter the lie that the election was stolen. But it includes no right
to incite mob violence.
Supreme Court decisions have long confirmed that
you can be charged with a crime if your speech is (1) “directed to inciting or
producing imminent lawless action” and (2) “likely to incite or produce
such action.” The First Amendment does not protect “preparing a group for
violent action and steeling it to such action.”
A Sixth Circuit case involving Trump himself
explains: If a speech “explicitly or implicitly encourage[s] the use of
violence or lawless action” and violent or lawless response is likely and
imminent, you’ve gone beyond free speech.
That’s
what we all saw Trump do on national television.
Over
the last four years Trump has repeatedly been denounced for acting as though he
were above the law. We can’t allow a supposed need for “unity” to confirm that
he was right.
 |
| Editor's Note: I've read this book and highly recommend it - Will Collette |
Impunity
is a disease that rots the rule of law. Left unchecked, it will rot American
democracy. America must teach Donald Trump that he is not above the law —
and that his impunity has finally come to an end.
Mitchell Zimmerman is an attorney, longtime
social activist, and author of the anti-racism thriller Mississippi Reckoning.
This op-ed was distributed by OtherWords.org.
