District of Columbia Attorney General Karl Racine appeared on MSNBC Jan. 11, suggesting he may prosecute Donald Trump after the president leaves office on Jan. 20. Racine is known for using his office and the taxpayers’ purse to harass Trump and hurt conservatives. From bothering Trump with lawsuits based on the thin gruel of emoluments-clause violations to using his office to dismantle the NRA, this servant of the people serves his political self first. Now the AG will try again, this time kicking Trump on his way out the door.
Verdict First, Then the Trial
“I know that I’m looking at a charge under the D.C. code of inciting violence, and that would apply where there is a clear recognition that one’s incitement could lead to foreseeable violence,” Racine said. Inciting a riot where someone is injured is a very serious crime in our nation’s capital. The penalties include a ten-year maximum sentence. Racine added:
“Clearly, the crowd was hyped up, juiced up, focused on the Capitol, and rather than calm them down or at least emphasize the peaceful nature of what protests need to be, they really did encourage these folks and rile them up. Now whether that comes to a legal complaint, I think we’ve got to really dig in and get all the facts.”
The relevant portions of the D.C. statutes are:
“§ 22–1322. Rioting or inciting to riot.
“(a) A riot in the District of Columbia is a public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons …
“(c) Whoever willfully incites or urges other persons to engage in a riot shall be punished by imprisonment for not more than 180 days or a fine of not more than the amount set forth in § 22-3571.01, or both.
“(d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in § 22-3571.01, or both.”
It’s plainly apparent there was indeed a riot as the law defines. D.C. statutes do not define the term incite, however, or otherwise explain the crime. We know that D.C.’s restrictions on speech must not run afoul of the protection of free speech guaranteed by the First Amendment, though. As with defamation, laws against incitement to violence are allowed under the First Amendment. Could Trump’s words allow for his arrest under the law? Hardly.
Free Speech for Me, but Not for Thee
As reported by Reason, “[A]dvocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected speech unless it is both aimed at inciting ‘imminent lawless action’ and likely to do so.” No single sentence or string of sentences from Trump’s speech on Jan. 6 comes close to this standard. Review the transcript for yourself.
One wonders what other facts Racine will seek out. Or perhaps not.
We can look to federal law for some guidance on incitement:
“As used in this chapter, the term ‘to incite a riot,’ or ‘to organize, promote, encourage, participate in, or carry on a riot,’ includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”
No law degree is required to understand that President Trump’s words do not approach criminal liability under the statute and not under any allowable definition of inciting. Racine surely knows that, but he did get to go on TV with another negative Trump story and have another audition for a Biden administration appointment.
Read more from Scott D. Cosenza.