On the morning of January 6, 2021, aides for former President Donald Trump had done all they could to prepare him for what would become the most consequential day of his presidency.
Scheduled to speak before thousands of his most loyal supporters, Trump had been warned of the potential for violence, and of the weapons some were potentially carrying.
He remained convinced of a conspiracy to rig the election against him, even as some within his inner circle confided there was little proof to support it. Nor was there anything that could be done to overturn the election he’d lost, something his attorney general, William Barr, had told him prior to the day the vote was set to be certified.
Trump, however, could not be deterred.
Stepping to the stage, Trump was furnished with a carefully-worded script to air his grievances and speak to a crowd of demonstrators who believed his claims the election—and his presidency—had been stolen from them.
His script urged protesters to demonstrate peacefully, with the acknowledgement they’d already planned to march on the U.S. Capitol. He was to ask them to be nice. And he was to avoid criticizing specific public officials, with the only names mentioned people he was to thank for standing up for him.
But as documents released this week show, Trump paid those words little mind.
According to transcripts released by the January 6 House select committee over the weekend, Trump departed substantially from that script, ad-libbing thousands of words in an address to the masses.
He railed against his enemies. He escalated prewritten, misleading talking points about the validity of the election into clear falsehoods. And, in unplanned comments, he told his supporters to “fight like hell” to prevent an essential function of American democracy from taking place.
The transcript of his speech and the changes he’d made to the remarks that were prepared for him have since become a central facet of the case against Trump, raising new questions about whether he purposely sought to incite a mob against the United States government.
Though Trump and his attorneys have stated that his comments that day were merely metaphor, evidence of what Trump knew prior to his speech, paired with his unscripted remarks, could help build a case Trump not only knew of the potential for violence, but actively pursued it.
“Outrageous political speech is an American tradition, fully protected by the First Amendment,” Ken Paulson, director of the Free Speech Center at Middle Tennessee State University and former editor-in-chief of USA Today, told Newsweek in an email.
“The key to prosecution is whether Trump directed the crowd to engage in imminent violent conduct. The January 6 committee’s findings provide considerable evidence that he did,” Paulson wrote.
Namely, in the revelation Trump’s urging the crowd to “fight like hell” was spontaneous, and not part of the original script—and that it came after Trump had initially been advised of the likelihood for violence.
“It came after the Secret Service advised him that many in the crowd were armed and not willing to go through the magnetometers,” Paulson added. “He knew he was telling an angry and armed audience that they needed to go to the Capitol, intended to join them there, and when that didn’t happen, he refused for hours to do anything to curb the violence.
“That’s a far cry from just a fiery speech. Words are not protected as free speech if they’re part of a criminal act.”
Prior to the script’s release, some have argued prosecuting Trump for what he could have meant by his remarks could set a troublesome precedent for Americans’ protections under the First Amendment.
Attorney Jonathan Turley—who had served as a witness in two separate impeachment trials—warned against the dangers of using Trump’s comments from the dais as the basis for incitement charges shortly after the events of January 6, writing for The Hill in February 2021 that Trump’s remarks failed to match up to the test established under the landmark free speech case Brandenburg v. Ohio, when the Supreme Court declared “advocacy of the use of force or of law violation” is protected unless it is imminent.
“Trump did not call for use of force,” wrote Turley. “He told supporters to go ‘peacefully’ and to ‘cheer on’ his allies in Congress. He repeated that after violence erupted and told the crowd to respect and obey the police.”
His own words—rather than those his aides wrote for him—argue otherwise. Transcripts released over the weekend, Paulson argued, demonstrated that Trump set aside most of his prepared remarks and largely improvised, seemingly mocking his own aides’ advice to remain peaceful.
“We want to be so nice,” Trump said at the time. “We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder.”
“We fight like hell,” he concluded. “And if you don’t fight like hell, you’re not going to have a country anymore.”
The case may still not be open-and-shut. But given the evidence provided by the January 6 committee, prosecution now seems more realistic—should the Biden administration’s Department of Justice be able to pursue it under a Republican Congress.
“Yes, Trump delivered prepared remarks urging the crowd to march ‘peacefully and patriotically,’ but that’s literally not a get-out-of-jail card if the elements for prosecution are proven,” Paulson wrote. “Where prosecution once seemed impractical, if not impossible, the January 6 revelations have now made it at least plausible.”
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