Friday, August 18, 2023

What to do about Trump and threat of violence

My discussion  [draft]

A. Law of incitement

I quote the following from the article "Legal Standard of Incitement" at  https://isalegal.info/legal-standard-for-incitement/.

Incitement is the act of urging another person to commit a crime. In order to be found guilty of incitement, the person must have specifically intended to encourage the other person to commit the crime.
. . .
The Brandenburg test is a four-part test that looks at the following factors:
1. The nature of the speech
2. The likelihood that the speech will lead to violence
3. The intent of the speaker
4. The likelihood that the speech will be heard by people likely to be violent
. . .
The Brandenburg Test has two parts. The first part is known as the imminence requirement. This requirement states that the defendant must have specifically intended to incite imminent lawless action. The second part is known as the causation requirement. This requirement states that the defendant must have known that the other person was likely to take violent or unlawful action.

B. Applying law of incitement to Trump

Applying the foregoing to Trump calls for considering a number to things.

First, there is the mater of the extent to which Trump's supporters will do things that Trump tells them to do or that they think Trump wants them to do. 

In the January 6th attack on the capitol there is much in the record that  Trump's supporters will do things that Trump tells them to do or that they think Trump wants them to do.  https://www.nbcnews.com/politics/donald-trump/jan-6-rioters-believed-trump-storming-capitol-made-sense-rcna33125.

At a minimum, it seems provable that many persons who committed violence in the attack on the capitol believed Trump wanted them to commit violence.

Further their belief that Trump wanted them to commit violence on January 6th was not derived just from what Trump said to them during the rally at the ellipse but rather their belief was formed from many things that Trump said during the weeks from and after the 2020 election. 

As to whether Trump had an intent for the capitol attackers to commit violence, it is fair to conclude that Trump wanted them to commit violence if Trump's other efforts to prevent certification of the election results on January 6th were not successful. This is in part shown by Trump doing nothing for three hours as the violence was happening and his evidencing enjoyment in the violence happening.

On the ellipse, Trump did say that those at the rally should peacefully march to the capitol.  Those words, however, cannot be considered conclusive that Trump did not have an intent for them to become violent, and legally determining Trump's intent calls for considering other things as well, including Trump's awareness that his supporters were "triggered" by Trump's lies that Trump did not lose the election, the attackers believed Trump wanted them to commit violence if necessary, and Trump doing nothing for three hours while the violence was occurring.

The foregoing can be applied to the threats that are being made against grand jurors, the judge, witnesses and others in connection with the Georgia case against him.

The analysis can start with considering whether Trump desires for his supporters to make such threats and desires for his supporters to follow through on the threats. The January 6th attack on the capitol and other things in Trump's history shows that Trump has desired for his supporters to be violent. There is good reason to think that Trump desires his supporters to make threats against grand jurors, the judge, witnesses and others in connection with the Georgia case against him.

If it is believed that Trump has such desires, it then needs to be considered whether Trump's speech encourages the same and constitutes incitement taking into account "the likelihood that the speech will lead to violence" and "[t]he likelihood that the speech will be heard by people likely to be violent. For this purpose the totality of Trump's speech needs to be considered, as well as what Trump's supporters think Trump wants them to, and the extent to which they will do what they think Trump wants them to do.

C. What the Georgia authorities should do

Lawyers for the Georgia authorities should evaluate the extent to which Trump may be guilty of inciting his supporters to make threats against grand jurors, the judge, witnesses and others in connection with the Georgia case. Such evaluation should take account the things discussed above, including evaluating the extent to which Trump's supporters do things that Trump tells them to do or that they think Trump wants them to do (including to commit violence), and evidence that Trump desires his supporters to make threats against grand jurors, the judge, witnesses and others in connection with the Georgia case

To do the foregoing evaluation, the authorities should interview Trump supporters and ask them whether they are willing to make threats if they believe Trump wants them to make threats, whether they believe Trump wants them to make threats, and whether they would not make threats if Trump told them not to make threats. 

The Georgia authorities should tell tell Trump they are making the foregoing evaluation and doing the foregoing interviewing and afford Trump the opportunity to tell his supporters not to make threats.

D. Trump's ultimate legal responsibility

Ultimately, depending on facts that unfold, there may be a case for Trump having criminal liability for inciting his supporters to make threats and criminal and/or civil liability if there is violence against grand jurors, the judge, or witnesses in the Georgia case.

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