Biden DOJ Discards the Law to Get Trump

A s is reliably the case when confronted with a choice between law and politics, the Biden Justice Department under Attorney General Merrick Garland has chosen politics.

The Justice Department has told a federal appeals court that a civil lawsuit brought against former president Donald Trump, alleging damages based on the Capitol riot, should be permitted to go forward. According to prosecutors, if you squint hard enough, Trump’s January 6 Ellipse speech maybe, possibly, conceivably could have been an “incitement of private violence” and, therefore, falls outside the broad immunity afforded to “public communications” by presidents.

The Justice Department has never charged Trump with incitement, much as it would love to, because it knows such a case would be laughed out of court. Of course, if Merrick Garland’s prosecutors were to concede the truth that Trump did not commit incitement, and that his remarks — though vile and impeachable — were constitutionally protected, there would have been mutiny in the Democratic base that President Biden desperately needs to turn out if he is to have a prayer of being reelected.

So, to keep the tribe together, Garland et al. concocted a way to say the baseless incitement claim is theoretically plausible. Prosecutors did not argue that Trump committed incitement — which would contradict the Justice Department’s position in numerous Capitol riot cases. In fact, they take pains not to allege that Trump instigated the January 6 uprising. Instead, the government rationalizes that the lower-court judge — Obama appointee Amit Mehta — was not wrong in saying that Trump’s speech, as described by the plaintiffs, could conceivably be deemed incitement, such that it is theoretically possible (even if highly unlikely) that a jury could find incitement.

And who are the plaintiffs? Glad you asked. They include some of the most rabid Democratic partisans in the House (e.g., Maxine Waters, Jerry Nadler, Eric Swalwell, Pramila Jayapal). The Justice Department dryly notes that another, Bennie Thompson, was a plaintiff, “but he has since voluntarily dismissed his claim with prejudice.” It conveniently omits that Thompson did this strictly out of partisan calculation: Had he stayed in the case, he would have been disqualified from his star turn as chairman of the hyperpolitical January 6 committee, which, of course, alleged that Trump committed the crime of inciting an insurrection. That finding flies in the face of the Justice Department’s investigation, which, now in its third year, has not charged anyone with insurrection, much less charged Trump with inciting anything.

Solicitation to commit a crime of violence — a.k.a. criminal incitement — is a rarely charged federal crime. I charged it in 1995 against Sheikh Omar Abdel-Rahman, a jihadist who was duly convicted of (among other things) unambiguously ordering violent attacks against the United States — including government installations. The January 6, 2021, Capitol riot, which appalled the nation, has been the Democratic Party touchstone ever since. If there were a colorable case that Trump had committed actionable incitement, the Biden Justice Department would have indicted him for it.

To the contrary, the Justice Department has not only declined to charge Trump; it has never, in its over 900 Capitol riot prosecutions, alleged that he is an unindicted co-conspirator. It has fought and belittled attempts by defendants to claim that Trump put them up to their crimes. In its dubious seditious-conspiracy prosecutions, the DOJ’s theory has been that Trump was merely a pretext for violence against the government that conspirators were already planning. For the DOJ, the Trump of January 6 is an NPC — in gamer parlance, a non-playable character who may move the plot along but is of no real consequence.

Clearly, it’s not that prosecutors don’t want to make a case against Trump. To the contrary, Garland’s appointed special counsel, Jack Smith, is doing his best to construct a January 6 case that will stick. Still, the only way of potentially doing it — and it would be no sure thing — would be to prosecute Trump under concepts of fraud, based on his championing of constitutional scholar John Eastman’s legal theory that the vice president (Mike Pence) had the authority to discount state-certified electoral votes. The Justice Department knows it has no incitement case against Trump because it can’t tie him actionably to the violence.

On January 6, Trump gave what is universally described as a “fiery” speech. It teemed with lies about election fraud. Yet it’s not enough to say that he did not call for violence; although the media-Democrat complex refuses to report it and Thompson’s January 6 committee sedulously suppressed it, Trump explicitly called for his supporters on the Ellipse to march “peacefully and patriotically” to the Capitol.

To establish solicitation to acts of violence (i.e., incitement) under federal law, it is insufficient to show that a defendant made provocative remarks and then violence broke out. It is also not enough to show that violence broke out after a defendant used metaphors that are commonplace in political rhetoric (e.g., Trump’s assertion, “If you don’t fight like hell, you’re not going to have a country anymore”). Rather, to prove incitement, even in a civil case, federal law requires strong evidence that (a) a defendant actually intended his words to trigger violent acts, (b) the words used would naturally and proximately tend to cause violent acts, and (c) under the circumstances, those words posed an imminent threat of violence. This is a demanding test because the First Amendment creates broad immunity for expression, even “fiery” expression. That immunity extends most broadly, moreover, for political speech.

Ergo, it is inconceivable that someone who not only refrains from a clear call for violence but affirmatively calls for peaceful protest could be guilty of incitement. It should be unnecessary to say this, but one can’t be guilty of soliciting violence unless it is unmistakable that one has actually solicited violence. Trump didn’t. Case closed.

It should also be unnecessary to say that the lack of actionable incitement does not make Trump a good guy. The speech was despicable. It was disqualifying. It is one of the actions for which Trump was properly impeached and should have been convicted. It is all those things. But it is not incitement. We’re talking law here, not a morality play.

We depend on the Department of Justice to make that kind of call — an easy call legally — even if the politics of making it are fraught. Merrick Garland vowed to be the kind of attorney general who rises above politics. It is a vow he breaks time and time again.

Up until now, the Justice Department has lain low on the matter of Trump’s culpability in the events of January 6. This has made Democratic activists antsy, especially given that prosecutors, in their hundreds of cases, have low-keyed Trump’s complicity. There has been no revolt, though, because Garland keeps assuring the mob that Trump is under investigation and that the last chapter hasn’t been written yet. He knows that Trump won’t be charged with incitement because the DOJ doesn’t want to be humiliated by an acquittal; but the attorney general figures that if special counsel Jack Smith comes up with something else, or at least looks like he’s trying hard to bring a case as the clock continues to tick, he can keep mollifying Biden’s left flank.

Then the D.C. Circuit intervened with its pointed question, leaving Garland no place to hide. The government is not a party to the congressional Democrats’ civil lawsuit, but because the Justice Department has an important interest in the proper application of incitement law, the court made a point of asking it to weigh in. Prosecutors could have honestly admitted that if there were an incitement case they would have brought it by now. But in Democratic circles, the honest answer is not an acceptable answer. So, in essence, prosecutors dodged, hypothesizing that there could conceivably be an incitement case — if, you know, a court were willing to indulge imaginary facts and the suspension of constitutional law.

This may satisfy Biden’s base, at least for now. Nevertheless, partisan, Trump-obsessed Democrats can be only one factor in Biden’s 2024 election math. There is a wider electorate out there. It sees an administration that uses the legal process as a withering penalty against its political enemies and foils. You don’t have to be a Trump fan to be repulsed by that.