“The First Amendment must be properly applied here,” impeachment defense lawyer Michael van der Veen insisted Friday morning, saying that Trump’s “fight like hell” talk on Jan. 6 was standard political rhetoric, protected by the Constitution.
This argument is legally wrong. And the reason is a cluster of concepts that recur in criminal and civil law: foreseeability, recklessness, and negligence.
Together, these terms stand for the common-sense principle that if you create the conditions for something to inevitably occur, you are responsible for it. If you put a bunch of oil-soaked rags next to an open flame, you are responsible for the fire that results, even if you didn’t deliberately set it. If you get drunk and drive, you are responsible for the death you caused, and will likely be charged with murder, rather than simply manslaughter. The law recognizes this all the time.
Indeed, “foreseeability” can even mean things that are hard to foresee. For example, most first-year law students learn a famous case from 1891 called Vosburg v. Putney. In that case, one schoolboy kicked another in the knee, not knowing that he had a previous injury in that knee, which caused the seemingly innocuous kick to develop into a serious infection. The kicker was held responsible for damages. Since you never know the condition of another person, even that tragic turn of events is foreseeable.
Now apply that to Trump. Is it “foreseeable” that telling incendiary lies to a frustrated, angry base–for months, not just on Jan. 6–might cause some from that base to take violent actions? Is it foreseeable that saying things like “stand back and stand by” to an organization of violent vigilantes will cause them to get ready to fight at the appropriate time? Of course it is.
Foreseeability is important because very rarely do demagogues spell out exactly what they want their followers to do. They use broad language, dogwhistles, and hints, knowing full well that some of those hearing that will take matters “into their own hands.” They commit what has been called stochastic terrorism, defined as “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.”
Incitement—the “high crime” of which Trump stands accused—doesn’t require someone to say “please go storm the Capitol right now.” It includes creating a situation in which mobs (or ‘lone wolves’) will inevitably commit horrific acts.
This is not, it should be noted, the standard that criminal law uses for cases involving incitement. As Trump’s lawyers again noted today, that standard is extremely strict, requiring a “smoking gun” directly connecting the speech act of the accused to the actions of those he inspired. Trump himself escaped legal accountability for the assaults of protesters at a 2016 rally after he’d told his crowd to “get ‘em out of here.”
As the appeals court held in that case, Trump’s words “may have had a tendency to elicit a physical response… but they did not specifically advocate such a response.”
But that exacting standard makes sense precisely because private actors are not public officials. In criminal cases involving private citizens, courts must balance the risk of inciting violence against the constitutional rights to free speech. An impeachment proceeding, however, is not a criminal case. The state is not taking away someone’s freedom. It is only threatening to remove someone from office or, as in Trump’s case, to prevent him or her from ever holding office again.
That calls for a broader standard. Unfortunately for the House managers, there is no precedent for what that standard should be.
Which brings us back to foreseeability. Yes, Trump’s many false and incendiary statements about the stolen election can be interpreted in many ways, just as “get ‘em out of here” might have been. But it is foreseeable—indeed, inevitable—that some people will interpret them as calling for violence.
That should be the standard. Is a public figure creating a set of conditions such that violence—in this case, the Jan. 6 insurrection—is highly foreseeable?
There are other legal standards which point in the same direction. When one operates with reckless disregard, grossly negligent without concern for injury to others, one may be convicted of the same crime as intentionally injuring another.
Drunk driving is one example. Creating an ultra-hazardous condition in a public place is another. If I’m walking down the sidewalk and a piano drops on my head, it doesn’t matter that it was dropped by accident. That act—failing to secure a piano above a public sidewalk—is grossly negligent. Res ipsa loquitur, the law says: the thing speaks for itself.
Likewise in defamation cases. The Constitution protects neither outright lying nor speaking with “reckless disregard of the truth,” as some of Trump’s associates may soon find out in court. If I don’t bother to check a single source before repeating a claim that the entire election was stolen by Venezuelan operatives manipulating voting machines, I am just as liable as if I lied intentionally.
None of these cases is identical to Trump’s, but the principle is clear. Trump didn’t just shout “fire” in a crowded theater. He in effect shouted fire! – the Democrats set the fire! – the country is burning down! – the traitorous enemies of the people must be stopped!
Stochastic terrorism may not result in a criminal conviction, because the risk to constitutionally protected speech is too great. But it clearly merits an impeachment to protect the republic from a dangerous demagogue who could otherwise try and claim office again.
And what happens if you apply the same standard to the Democrats’ statements which Trump’s attorneys presented on Friday? Nothing, because none of them are close. Yes, in 2016, some Democrats objected to the certification of some electors—but none called the entire election illegitimate, none told extremists to “stand back and stand by,” and none promoted baseless conspiracy theories.
Yes, they argued—and turned out to be correct—that Russian agents helped hack and publicize private emails, conducted stealth campaigns on social media, and coordinated their efforts with the Trump campaign. But they didn’t allege that the Russians hacked election machines or carted in wheelbarrows of fake ballots. They didn’t hold rallies saying “Stop the Steal” based on no evidence whatsoever. They didn’t urge election officials to “find” other votes. In short, no Democratic leaders conducted a months-long campaign of incitement, as Trump did.
Likewise in 2020. The word “fight” is not the issue; the issue is months of lies, dog whistles, baseless conspiracy theories, incendiary rhetoric, and us-versus-them demonization. Sure, Joe Biden said that if he were in high school, he’d like to “take [Trump] out behind the gym.” But he wasn’t also winking at the Proud Boys and QAnon and alleging a vast conspiracy to steal the entire election. It’s not foreseeable that any of his followers would storm the Capitol with guns and kill cops. For all the strong language Democrats used, Trump’s lawyers didn’t find a single example of violence they inspired (and no, the overwhelmingly peaceful Black Lives Matter and the tiny fringe antifa, neither of whom listen much to mainstream Democrats, obviously do not count).
There’s no need for magic words from Trump’s mouth choreographing the violence of Jan. 6. Stochastic terrorism doesn’t work that way. Proving it is a matter of foreseeability and reckless disregard.
And when it comes from a public official like Trump, stochastic terrorism is incitement. It is ample grounds for preventing this demagogue from ever holding office again.
