Until Tuesday, we had both publicly stated that the Department of Justice had insufficient evidence to indict former President Trump for his conduct on January 6. Our conclusion, which we each came to independently, was largely grounded in First Amendment concerns about criminalizing purely political speech.
But Tuesday’s explosive testimony from Cassidy Hutchinson, a former aide to Trump’s Chief of Staff Mark Meadows, changed our minds. In particular, Hutchinson testified to hearing Trump order that the magnetometers (metal detectors) used to keep armed people away from the president be removed: “I don’t fucking care that they have weapons, they’re not here to hurt me. They’re not here to hurt me. Take the fucking mags [magnetometers] away. Let my people in. They can march to the Capitol from here; let the people in and take the mags away.”
Admittedly, Hutchinson is only one witness, and it is true that some of her testimony would, in the context of a criminal trial, constitute hearsay. But Hutchinson—unlike many of her detractors who have contested certain details of her testimony—testified under oath and, contrary to the sneering commentary of the House Judiciary Committee GOP Twitter account, not all of Hutchinson’s second-hand remarks were introduced to establish the truth of the matter asserted. Even much of that portion of her testimony that did constitute hearsay might still be admissible under the relevant evidentiary rules.
These utterances by Trump (as alleged by Hutchison) were not political speech. They serve as additional proof of intent and context, and—crucially—a material act to increase the likelihood of violence. This easily distinguishes Trump’s speech at the rally from other kinds of core political speech that should never be criminalized.
Insufficient evidence before Tuesday’s testimony
Let’s start with what was publicly known of Trump’s speech at the “Stop the Steal” rally at the White House Ellipse. Trump told the crowd, "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Then he added:
Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we're going to walk down, and I'll be there with you, we're going to walk down… Because you'll never take back our country with weakness. You have to show strength and you have to be strong … And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore … So we're going to, we're going to walk down Pennsylvania Avenue ... And we're going to the Capitol, and we're going to try and give … give our Republicans … the kind of pride and boldness that they need to take back our country.
Hindsight is 20/20, and before Tuesday, we both believed that hindsight bias was causing too many commentators to leap from Trump’s remarks to the violence that followed, and that a criminal prosecution of the speech itself would run afoul of foundational principles of First Amendment law. In particular, we were skeptical that Trump’s speech would satisfy the stringent requirement of Brandenburg v. Ohio, the landmark case in which the Supreme Court held that the government could only criminalize speech advocating unlawful action if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Although Trump’s speech was undoubtedly a but-for cause of the violence, the content of the speech itself is hard to distinguish from other politicians or activists who may call on supporters to “fight like hell” or “go march to the Capitol” or any other government building for a political purpose.
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