Did President Donald Trump incite Wednesday’s assault on the U.S. Capitol? The answer seems obvious, but a formal case against him, through impeachment or prosecution under insurrection or incitement statutes, requires specific evidence. The speech he delivered shortly before his supporters stormed the Capitol is part of the evidence, but there’s more. Since Dec. 14, when the Electoral College sealed Joe Biden’s victory, Trump has instructed his followers to wage war, disregard legal constraints, and overturn the election by any means necessary.
Every previous president who lost the Electoral College conceded defeat. Even Al Gore, who challenged Florida’s ballot count in 2000 when he was vice president, conceded five days before the electors voted. But Trump refused. “This Fake Election can no longer stand,” he tweeted on Dec. 15, hours after the electors affirmed Biden’s win. “Get moving Republicans.” Trump urged his allies in Congress to block certification of the electoral vote. When Senate Majority Leader Mitch McConnell acknowledged Biden’s election, Trump rebuked McConnell and replied that the “Republican Party must finally learn to fight.” On Dec. 19, Trump called on his followers to swarm Washington and pressure Congress to keep him in power. “Big protest in D.C. on January 6th,” the president tweeted. “Be there, will be wild!”
Trump dismissed the election as a coup. “The rigging of the 2020 election was only the final step in the Democrats’ and the media’s yearslong effort to overthrow the will of the American people,” he declared in a Dec. 22 video address from the White House. He called Biden a “fake president” and said Biden’s election should never be accepted. Then, on Dec. 26, the president called for war. “If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it an act of war, and fight to the death,” he raged. “Mitch & the Republicans do NOTHING, just want to let it pass. NO FIGHT!”
One crucial element of Trump’s insurrectionism was a persistent message to ignore unfavorable rulings by courts. “These States ‘election laws’ were made up by local judges & politicians, not by their Legislatures,” he said of states that had voted for Biden. Therefore, the president told his followers, “the whole State Election” should be discarded as illegal. When the Supreme Court refused to intervene on Trump’s behalf, he scoffed, “The U.S. Supreme Court has been totally incompetent and weak on the massive Election Fraud.” He demanded that Republican senators “step up and fight for the Presidency” because “Courts are bad” and had failed to stand with him.
In the days before the Capitol was sacked, Trump escalated his campaign to stay in power. He pressured Georgia officials to change their state’s election results. He circulated the idea that Vice President Mike Pence could postpone the inauguration. He falsely claimed that Pence could invalidate electors. On Monday, at a rally in Georgia, the president said of Democrats, “They’re not taking this White House. We’re going to fight like hell.” On Tuesday, as his supporters arrived in Washington and prepared to march on Congress, he hailed the show of force. “Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats,” he tweeted. “Our Country has had enough, they won’t take it anymore!”
On Wednesday, addressing his followers just before they marched on the Capitol, Trump gave them four reasons to seize power. First, he told them that the Supreme Court was corrupt and wouldn’t protect them. “They love to rule against me,” he said of the justices. “It almost seems that they’re all going out of their way to hurt all of us and to hurt our country.”
Second, Trump said his allegations of election fraud justified suspending the tradition of respecting state-certified election results. “When you catch somebody in a fraud, you’re allowed to go by very different rules,” he argued. “You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore.”
Third, Trump said constitutional objections to overturning the election had to be set aside because America was in danger. “This is a matter of national security,” he declared. “A lot of bad people” were trying “to illegally take over our country,” he warned, and “the Constitution says you have to protect our country.” If Biden were inaugurated, “You will have an illegitimate president,” Trump told the crowd. “Our country will be destroyed. And we’re not going to stand for that.”
Fourth, Trump told his supporters to match the ruthlessness of their domestic enemies. He didn’t explicitly condone violence, and at one point, he inserted the word “peacefully.” But throughout the speech, he called for an escalation of tactics. “Republicans are constantly fighting like a boxer with his hands tied behind his back,” he complained. “We’re going to have to fight much harder.” He said of Democrats, “They’re ruthless, and it’s time that somebody did something about it.” As he directed the crowd to march on the Capitol, he concluded: “If you don’t fight like hell, you’re not going to have a country anymore.”
Social media records show that as the president finished his speech, hundreds of his followers circulated messages to attack the Capitol. Later, as the assault was underway, Trump tweeted that Pence, by declining to invalidate the electoral vote, had failed to show “the courage to do what should have been done to protect our Country.” That prompted some of Trump’s supporters to demand that Pence, who was inside the Capitol, be hunted down.
According to Trump’s advisers, in accounts relayed by the Washington Post and New York Times, the president “was initially pleased” as he watched the assault on TV, because “his supporters were literally fighting for him.” He rejected requests to mobilize the National Guard in defense of the Capitol. When House Minority Leader Kevin McCarthy implored Trump to denounce the mob, he refused. Only later, after lawyers had warned the president that he could be prosecuted for incitement, did he ask his followers to go home. But he insisted that they had been provoked by enemies who “viciously stripped away” his “landslide election victory.”
Trump didn’t just incite a riot on Wednesday. For weeks, he has told his supporters to ignore court rulings, set aside constitutional constraints, rise up against state-certified election results, and fight to the death. Under federal law, that’s incitement of “insurrection against the authority of the United States or the laws thereof.” The penalty is a jail term of up to 10 years, and a ban on ever holding office again.