Did Trump incite a riot under the D.C. code?

You’re probably thinking, "Yes, DUH." But I marched through the legal analysis.

As before, I found it easier to record a video.

If you prefer to read, stand by for a transcription. via @YouTube

An edited transcription is here: terikanefield.com/did-trump-inci…

I should have called this video Fun With Criminal Law (or Teri Does IRAC).

I’ll also do a quick Twitter summary. (Spoiler: Yes he incited a riot, duh. But . . .)

D.C. A.G. Karl Racine said he’s looking into whether Trump and others violated D.C. Code section 22-1322, inciting a riot.

To get a conviction, a prosecutor has to prove each relevant element of the crime beyond a reasonable doubt.

The relevant elements are (a) and (c).

To do the analysis, we use ICRC, the method known to law students everywhere.

The issue is: Did Trump (and others) violate section 22-1322?

“R” stands for the rule.

Analysis just means we look to see whether there is enough evidence to meet each element.

Element (a) just says you need a riot. You can’t convict someone of inciting a riot if there was a riot.

Element (a) is sort of a no-brainer. We all saw the pictures. Yes, there was a riot.

(c) is a bit trickier because Trump has a few defenses.

At first glance, (c) also seems like a no-brainer, particularly because merely stopping or delaying the counting was lawless. And

Even Mitch McConnell said Trump was practically and morally responsible for the insurrection.


Trump knows how to couch his words.

Michael Cohen, in his testimony before Congress, a few years ago explained how Trump lets people know what he wants them to do without saying it directly.

So he will keep pointing to his words and say, "Nothing wrong with that!"

"I told them to be peaceful!"

"People say 'fight' all the time! Look how many times X said 'fight!"

Given the totality of the circumstances, I think it’s a lame defense. I’d want my client to have a better defense than that.

Trump can also raise a First Amendment defense, which comes from a case called Brandenburg v. Ohio.

This is a case in which a guy named Brandenburg was convicted for an incendiary speech to Klan members. He made racist and incendiary comments.

The Supreme Court overturned his conviction and handed down a rule:

The only time incendiary speech isn't protected by the First Amendment is if it incites or produces imminent lawless action and or is likely to incite or produce such action.

This is intended to be a high standard.

Personally I think that Trump’s speech incited imminent lawless action, particularly because stopping the counting of votes by itself is lawless and Trump obviously wanted that.

Given what we’ve seen, I will be surprised if we don’t see Trump, Mo Brooks, Giuliani, and others charged under this statute.

But this statute is only a misdemeanor.

Racine also said his office collaborating with federal authorities . . .

Federal prosecutors have more serious charges they can bring. That’s investigation is happening separately. It's also the investigation where we're seeing lots of action.

I'll look at that investigation next.

Here's the full transcription:

Someone commented that they prefer to read unless videos are particularly cute.

I also prefer to read!

But maybe I should include JJ. in the next video.

Problem: He's usually busy guarding the house. He sits in that chair and watches for the mail carrier and skateboarders.
I definitely needed the edit button on this thread. I have some really random mistakes.

I stand by my usual defense: All errors are entirely the fault of keyboard gremlins.

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More from @Teri_Kanefield

6 Apr
I read the lawsuit the capitol police officers (Blassingame and Hemby) brought against Trump.

In a nutshell: This case is bad for Trump.

My analysis seemed too long for a thread, so I recorded a video (9 minutes).

I'll have a transcription shortly.

If, like me, you prefer to read, I put an [edited] transcription on my blog, here: terikanefield.com/blassingame-v-…

To summarize, this case is bad for Trump for a whole bunch of reasons.

🔹First, the plaintiffs sustained actual injuries . . .

Some of these tort cases are a bit weak because the plaintiffs have a hard time showing why they should have standing to sue. (Also, these are particularly sympathetic plaintiffs.)

🔹The facts are bad for Trump. The facts in this case are devastating.

Read 15 tweets
31 Mar
Karen Stenner is a political psychologist who predicted the rise of a Trump figure back when the idea brought ridicule.

She understands how to neutralize the dangers posed by authoritarians.


To give you the authoritarian dynamic in a nutshell:

A certain segment of the population has an authoritarian (anti-democratic) personality. They'll never feel comfortable in a liberal democracy.

By liberal democracy, I mean ⤵️

As liberal democracy expands, those with an authoritarian personality push back. This creates an endless dynamic.

I've phrased it this way: Progressives push forward; reactionaries push back. It's an endless cycle.

Read 12 tweets
26 Mar
When they put up a barrier, we figure out a way around it.

GOP demographics are shrinking. Their policies are unpopular. They know they are on a collision course with time.

This latest piece of legislation has the potential of backfiring. Remember the Wisconsin primaries?

The Wisconsin Republicans shamelessly tried brazen voter suppression tactics. But you know what? People don't like it when they think someone is trying to make it hard for them to vote.

Wisconsin has @benwikler
Georgia has @staceyabrams

Every election matters, at every level.

What the Republicans always understood better than the Democrats was that politics (and control) is local.

That's why they were amazed when Republican legislatures couldn't overturn state election results.

Read 5 tweets
20 Mar
Hi, @JohnCollins_KP

I can answer!🙋‍♀️

The modern Republican Party + Putin = True Love because have common goals.

For decades now, Russia has been “beckoning” to America’s far right wing, presenting Russia as the savior of white majority rule. (Timothy Snyder’s word)

2/ This includes Russians infiltrating the NRA and helping radicalize the NRA as a right wing extremist group—but that’s for another post.

The GOP Russia love affair has been evident for some time.
3/ Remember when Tucker Carlson said the U.S. should “rethink America’s alliances.”

And when Sen. Rand Paul went to Moscow to “open lines of communication“? abcnews.go.com/International/…
And when Guiliani attended a pro-Russia conference? thinkprogress.org/why-is-rudy-gi…
Read 12 tweets
18 Mar
Challenging Biden to a debate is a clever way to imply that there is room to debate.

"Debate" assumes a shared set of facts. Then you debate the implications.

This⤵️ is a tactic for elevating and giving credence to a falsehood.
abcn.ws/3qX80Cl via @ABC

This tactic is extremely effective. What Russian propaganda networks do is claim to air "all sides." They publish the truth as one of many possible theories, and then crowd the airwaves with so much "noise" that nobody can figure out what's true and what isn't.

The American right wing does this by talking about their free speech right to promulgate lies. They claim that universities prohibit free speech by not allowing ALL ideas to be presented.

They want to put lies along side truth on the same stage.

Read 4 tweets
17 Mar
It’s not possible to find common ground with people who deliberately lie for political advantage. How do you meet them halfway?

Any lies undermine democracy.

The parties are no longer liberal v. conservative.

They are pro- and anti-democracy.
You fight disinformation the same way you strengthen democracy. I'll put a link in the next tweet.

This makes sense because rule of law (the authority underlying democracy) requires truth and shared facts.

Forms of government other than democracy depend on lies and myth ("The Great Leader Knows All" or "The king was chosen by the gods").

Here's how to strengthen democracy: terikanefield-blog.com/things-to-do/
Read 4 tweets

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