Donald Trump’s lawyers face a challenge as they begin his defense at this week’s Senate impeachment trial. House prosecutors have made the case that Trump, in his Jan. 6 speech to a crowd in Washington, D.C., incited the insurrection that followed. Trump’s lawyers deny that the insurrection was what Trump intended. But in that case, they need to offer a plausible alternative. If Trump wasn’t directing the mob to attack or threaten Congress, what was he telling it to do?
In their trial brief, the defense attorneys point out that Trump’s Jan. 6 remarks never explicitly called for “an insurrection, a riot, criminal action, or any acts of physical violence.” At worst, the brief argues, Trump was “misunderstood” by the thugs who subsequently attacked the Capitol. But nowhere in the brief do the lawyers explain what the misunderstanding was. That’s because Trump’s behavior, over the course of two months, rules out any other reasonable explanation. By rejecting every nonviolent option that could have ended the election dispute, he drove his supporters to violence.
According to Trump’s attorneys, when he told the crowd to fight—“If you don’t fight like hell, you’re not going to have a country anymore”—he was just referring to “action at the ballot box,” calling for “a change in the occupants of Congress through future primary elections,” or talking “about the need to fight for election security in general.” But that explanation is obviously false. Trump summoned the crowd to show up two years before the next federal election. The question on the table was whether to accept the election that had just taken place.
The lawyers, in their brief, note that Trump didn’t specifically demand “unlawful action.” But he got the same result by telling his base that lawful action had failed to save the country. He denounced every court, including the Supreme Court, that rejected his election challenges. When the FBI and the Department of Justice found “no evidence of widespread voter fraud,” he denounced them too. He told his followers to ignore state-certified ballot counts and the Dec. 14 vote of the Electoral College. As lawful options were exhausted, Trump continued to demand that the election be overturned. The conclusion was inescapable: He wanted action outside the law.
The president made clear that these actions would have to be taken by citizens, because public officials had failed. He urged his supporters to come to Washington on Jan. 6, when Congress was scheduled to certify the electoral vote, because Republican senators lacked the courage to block certification. On Jan. 4, he told his followers that it was their job to “fight like hell” and make sure the certification didn’t happen. On Jan. 5, he vowed that they would “inundate” Washington and galvanize Republicans. The mission of the mob, as he described it, was to intimidate Congress.
In his speech to the crowd on the morning of Jan. 6, Trump inserted a token line about protesting “peacefully.” Hardcore Trump fans knew he often sprinkled that line in speeches as a joke. Then, over the next hour, Trump foreclosed every peaceful option. He called Joe Biden’s victory illegitimate. He dismissed the Supreme Court as biased and hostile to the country. He told his supporters to suspend the usual rules of election acceptance, urged them to counter the left’s “ruthless” power grab, and warned that if Biden were inaugurated, “our country will be destroyed.” By the end of the speech, his meaning was obvious: Violence was justified and necessary. An hour later, as insurrectionists surrounded the Capitol, he tweeted that the last nonviolent option—intervention in Congress by Vice President Mike Pence—had failed.
Trump’s behavior during the attack erased any doubt about his intentions. He didn’t like scenes of his supporters attacking police—he saw those images as a threat to his “law & order” brand—but he loved what the mob had done to Congress. White House officials said he was “pleased,” “delighted,” “excited,” and “borderline enthusiastic because it meant the certification was being derailed.” When the assault was over, Trump gloated. “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots,” he tweeted. “Remember this day forever!”
Trump made clear what he wanted. He declared that the country was in mortal danger and that officials who stood in his way were enemies of the people. He told his followers that every legal option had failed them and that every institution was rigged against them. He warned that the putative winners of the election were ruthless, and it was “time somebody did something about it.” He scoffed that Congress, without pressure from the streets, would never do the right thing. If these messages weren’t a call for insurrection, what were they? The former president’s lawyers had better have an answer.