Yes, Trump Can Be Charged With Inciting a Riot

Donald Trump issued a video statement on Thursday, January 7, acknowledging that Joe Biden was the winner of the November election. While he admitted no wrongdoing, part of the impetus for finally acknowledging his defeat may be because he is in danger of facing criminal charges for inciting a riot. Trump made sure to call the actions he requested from his supporters on Wednesday “heinous" and said he was outraged by the violence. Yet retroactively calling for peace and denouncing violence is not enough to avoid criminal charges.

Michael Sherwin, the Acting United States Attorney for the District of Columbia, told several news outlets that all potential criminal charges were being considered, including against the President. “If the evidence fits the element of a crime, they're going to be charged" Sherwin noted.

Applying the Anti-Riot Act to Wednesday's Events

Federal law prohibits inciting a riot. Under 18 U.S.C. §2101, anyone who uses interstate travel to organize, promote, encourage, participate in, or carry on a riot; or commit any act of violence in furtherance of a riot; or aid or abet any person doing the above, is guilty of a federal crime. Trump, of course, encouraged and gathered supporters from across the country to attend his rally. Congress passed a law in 1960 defining a riot in D.C. as a "public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons."

Did Trump's actions amount to inciting a riot? There's a strong argument to be made. Here are some of his remarks at the “Save America" rally on January 6. These are presented in order, so you'll notice the rhetoric gets more extreme later in the speech.

• “You don't concede when there's theft involved."
• “We're gathered together in the heart of our nation's capital for one very, very basic and simple reason, to save our democracy."
• “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today we will see whether Republicans stand strong for the integrity of our elections, but whether or not they stand strong for our country."
• "We're probably not going to be cheering so much for some of them because you'll never take back our country with weakness."
  
• “Our brightest days are before us, our greatest achievements still wait. I think one of our great achievements will be election security because nobody until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9:00 in the evening and say, 'I want to thank you very much,' and they go off to some other life, but I said something's wrong here. Something's really wrong. Can't have happened. And we fight. We fight like Hell and if you don't fight like Hell, you're not going to have a country anymore."
• “So, we're going to, we're going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we're going to the Capitol and we're going to try and give… The Democrats are hopeless. They're never voting for anything, not even one vote. But we're going to try and give our Republicans, the weak ones because the strong ones don't need any of our help, we're going to try and give them the kind of pride and boldness that they need to take back our country."

Particularly the last comment, which concluded a speech that lasted for more than an hour and focused mostly on allegations that the 2020 election was stolen, should be seen by any objective measure as encouraging or promoting a riot. Trump promised to go with his supporters and told them to march on the Capitol building after repeatedly saying they needed to fight to protect their country, or they wouldn't have a country anymore. While Trump was lying when he said he would go with them, promising that he would emboldened the crowd. Trump then failed to immediately call for peace after the rioting started and failed to call in the National Guard - Vice President Pence had to do so.

First Amendment Considerations

Inciting violence has never been protected speech under the First Amendment. However, the Fourth Circuit recently held that the Anti-Riot Act is in part unconstitutional, holding that the words “promote" and “encourage" are overbroad. The U.S. Supreme Court has not held similarly, however, and as yet no other circuits have adopted a similar holding to the Fourth Circuit's. Absent Supreme Court involvement, prosecutors would only have to show that Trump encouraged or promoted a riot, not that he organized or participated in it.

Presidential Immunity and Pardoning Power

While in office Trump enjoys presidential immunity. That immunity ends on January 21. The Department of Justice can file criminal charges then.

Trump is likely, at this point, to pardon himself before leaving office. However, whether a President can pardon themselves is unclear. Regardless, President-elect Biden nominated Merrick Garland to be the Attorney General on the same day Trump encouraged his supporters to riot. Biden said that he wants Judge Garland to follow the law, not political considerations. In this case, following the law means charging Trump under the Anti-Riot Act. The political difficulties associated with prosecuting a former president do not need to prevent the DOJ from doing its job.

Related Resources

• Fourth Circuit Holds Anti-Riot Act Partially in Violation of First Amendment (FindLaw's U.S. Fourth Circuit)
• Supreme Court Does Not Give Presidents Immunity From Criminal Subpoenas. More Litigation Coming. (U.S. Supreme Court)
• Rioting and Inciting to Riot (FindLaw's Learn About the Law)