The video message President Donald Trump released Wednesday suggests that the centerpiece of his defense to both conviction in the Senate and to subsequent criminal charges in court will be the First Amendment. But there is a big hole in this defense.
The president’s post-impeachment video decried the “unprecedented assault on free speech we have seen in recent days” and “efforts to censor, cancel and blacklist our fellow citizens.” While these words seem to refer to steps taken by Twitter and YouTube to prevent their platforms from being used to incite further violence, Trump is presumably laying the groundwork for the defense of his own incendiary statements at the rally just before the invasion of the Capitol by his supporters. Because the Supreme Court held in Brandenburg v. Ohio that the First Amendment requires criminal incitement to be both intended and likely to incite imminent lawless action, the president may, in fact, be able to escape criminal liability for those remarks because he avoided explicit calls to violence at the rally and wove in mixed messages about being “peaceful” with his violent rhetoric.
But the First Amendment does not protect Trump from liability for his failure to act once his rally speech set serious federal crimes in motion. The strongest case for both convicting Trump on the articles of impeachment in the Senate and for convicting him on criminal charges after he leaves office would be based primarily not on what he said at the pre-invasion rally but on what he failed to do after the insurrection began. The president cannot escape responsibility for failing to take decisive action for hours while his supporters invaded, vandalized, and terrorized the Capitol.
Ordinarily one cannot be held criminally liable for what one fails to do. But criminal law does recognize liability for one’s omissions when one has a legal duty to act. For example, parents can be prosecuted for failing to protect their children because parents owe a duty of care to their children.
The president has a sworn duty to preserve, protect, and defend the Constitution of the United States, a duty that in this case required him to immediately and unequivocally discourage his most ardent supporters from committing insurrectionary crimes once he realized they were occurring. Trump’s violation of that duty by failing to act makes him an accomplice to those crimes if he intended by that omission to assist or encourage those crimes. A strong case already exists that the president wanted his supporters’ insurrectionary crimes to continue in order to change the result of the election or at the very least obstruct the certification of his defeat. Recent press reports suggest that even stronger evidence might come to light. That intent, coupled with his oath of office, makes him an accomplice to those crimes if his supporters were even slightly encouraged by his inaction.
We do not yet know much about what Trump said or did in the White House while the Capitol riot was ongoing, although some press reports suggest he was lobbying senators by phone to vote his way for the election results and delaying deploying resources to quell the insurrection. Facts already known make clear that he violated these duties of protection, however. His supporters invaded the Capitol shortly after 2 p.m. Trump did not ask his supporters to leave the Capitol until 4:17, more than two hours after they first overwhelmed the Capitol Police. His 4:17 p.m. video message also repeated many of the lies about the election that motivated their crimes in the first place, pouring more gasoline on a fire that he was supposedly asking people to extinguish.
One important advantage of focusing on the president’s failure to immediately try to end the invasion of the Capitol is that it makes it much harder for the president to rely on the messages about peaceful protest that he mixed in with his incendiary rhetoric. For example, at 2:38 p.m. Trump tweeted, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay Peaceful.” The rioters at that point were anything but peaceful. Similarly, amid all the violent language of his rally remarks Trump did say once that his supporters should march “patriotically and peacefully” to the Capitol. His defenders will argue that these messages about peaceful protest both show that he did not intend violence to result and also made it unlikely that violence would result from his remarks, thereby bringing his speech within First Amendment protection. These mixed messages might work against a theory that Trump intended to incite violence before the invasion. A prosecution based on Trump’s duty to stop the violence turns things around, however. Trump would need to show that he had tried hard to stop the violence after it began, and one who is serious about stopping an ongoing riot does not send mixed messages.
A failure-to-act prosecution would also focus attention on Trump’s damning first post-invasion tweet. At 2:24 p.m., he tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” This first post-invasion tweet encourages the crimes that were taking place at that very moment. A focal point of Trump’s rally remarks was that Vice President Mike Pence must simply award the election to him. “If Mike Pence does the right thing, we win the election,” Trump said. Later in the rally he said that, if Biden became president, “our country will be destroyed, and we are not going to stand for that.” So the first statement Trump made after a violent mob stormed the Capitol was that Pence had failed do what was necessary to save the country. It was just six minutes later that a member of the mob fatally injured a police officer with a fire extinguisher.
The president had another legal duty that provides a second basis for guilt. One who creates a risk of peril to another can be prosecuted for failing to try to protect those known to be imperiled. Such liability does not require that the defendant intentionally create the risk of peril. Someone who negligently sets fire to a building he believes to be abandoned can be guilty of intentional murder if he fails to try to help people he sees running from the flames.
Negligence is much easier to prove than intentional incitement. One is considered negligent if one ignores a foreseeable risk. Ironically, Trump himself admitted the violent acts of his supporters were entirely foreseeable in a tweet he issued after the insurrection was over and its violent nature was clear. That evening he tweeted, “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.”
These failure-to-act theories of liability would allow Trump to be found complicit in a number of federal felonies that were committed in the Capitol, including destruction of government property, rioting, assault, and possibly even terrorism offenses, seditious conspiracy, and felony murder for the death of the officer assaulted with the fire extinguisher. These charges could be brought against him by the Department of Justice once he leaves office. They could also serve as a basis for his conviction in the Senate on the articles of impeachment. While the articles themselves allege incitement, strict rules of pleading do not apply in an impeachment trial because impeachable offenses do not necessarily have to be crimes.
Prosecuting Trump for his failure to act may also make more sense to the one-third of the public who don’t believe Trump was responsible for the invasion of the Capitol. Public opinion will matter a great deal in the political arena of the Senate impeachment trial. Steeped in a culture of individual responsibility, Americans in general—and perhaps Trump supporters in particular—have a hard time believing that you can be responsible for someone else’s crimes because you encouraged them. That same culture of individual responsibility, though, honors duties to protect those for whom you are responsible. Trump violated his duties to protect people, property, and institutions. The First Amendment provides no defense for these violations in either a court of law or the court of public opinion.