Donald Trump has been impeached (again) for his incitement of the attack on the U.S. Capitol. In his Senate trial, his lawyers will likely argue that his speech to the mob that day was just a regular political speech that maybe contained a little “hyperbole.” Don’t fall for it.
In the closing days of the 2020 election campaign, we were part of a team of pro bono lawyers who sued Trump for unlawful voter intimidation. As Election Day approached, we — and our lead client, Mi Familia Vota Education Fund, a national nonprofit organization that works to increase civic participation in the Latino community — became increasingly concerned by Trump’s violent rhetoric. He repeatedly called for an armed presence at polling stations to prevent “fraud,” and encouraged supporters — what his campaign called the “Trump Army” — to show up at the polls for nebulous purposes. Trump even told the white supremacist Proud Boys gang to “stand by.”
We sued Trump and two administration officials in federal court in Washington, D.C., charging them with unlawful voter intimidation under the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871. We noted that Trump had “publicly encouraged vigilante violence,” and that he had “encouraged armed vigilantes to believe that their intervention is necessary and invited by the president and his administration.” We also cited Trump’s repeated public refusals to commit to a peaceful transfer of power if he lost the election. We sought a court order that would, among other things, prohibit Trump from encouraging his supporters to interfere with voting or ballot counting, or from tweeting disinformation about the legality of mail-in voting.
One of the Trump legal team’s main arguments — which ultimately persuaded the judge — is painful to read now. Our lawsuit cited a Trump campaign email inviting supporters to join “the Trump Army” and serve as “the President’s first line of defense when it comes to fighting off the Liberal MOB.” But Trump’s lawyers dismissed this, even in the context of all his other rhetoric, as mere “political hyperbole.” They argued that, “[t]he President’s description of election monitors as an ‘Army for Trump,’ and his directive to supporters to ‘[w]atch those ballots’ and ‘[w]atch all the thieving and stealing and robbing they do’ … are calls for supporters to exercise statutory rights to serve as election monitors or otherwise be vigilant regarding potential voting abuses.” They argued that Trump’s rhetoric wasn’t voter intimidation, but merely “political ‘statements’ that Plaintiffs dislike.” Ultimately, they insisted, the risk of third-party violence was “far too speculative and conjectural.”
The case was assigned to Senior Judge Richard Leon, a longtime fixture in Republican legal circles appointed to the bench by George W. Bush. After a brief telephonic argument, Judge Leon — who sounded annoyed at having to consider the case — opined that the threatened harm was “way too speculative” and ruled against us.
Were we wrong? Election Day itself was mostly peaceful. But the court order that we sought would also have prohibited Trump from urging supporters to interfere with ballot counting. And Trump-inspired mobs attempted to physically interfere with ballot counting in places such as Philadelphia and Detroit. Meanwhile, as we had predicted, Trump spent two full months tweeting and imploring officials to throw out validly cast mail-in votes.
Ultimately, we were right about the threat of violence, but wrong about the timing. Trump’s inflammatory rhetoric did lead to violent attacks on our democracy — not on November 3, 2020, but rather on January 6, 2021.
It’s now clear that the “Trump Army” doesn’t understand his words as mere “political hyperbole” innocently inviting supporters to “exercise statutory rights to serve as election monitors.” When Trump told supporters to march to the Capitol to “show strength” and “fight like hell” because “you’ll never take back our country with weakness,” they understood perfectly well.
Yet in the Senate impeachment trial, Trump’s defenders will surely cite his perfunctory disclaimer about marching “peacefully.” And they’ll most likely claim, incorrectly, that a 1969 Supreme Court case gives the president of the United States the unqualified right to incite a violent assault that left five dead and very nearly led to a massacre.
Unless the Senate convicts and disqualifies Trump from running for office in the future, he may well run again in 2024. Recent polling of Republicans and Republican-leaning independents shows that — while many have turned away in disgust — he still leads the Republican primary field by miles. His hardcore supporters have tasted blood, and he’s likely to incite even more violence if allowed the chance. After January 6, no one can call that “speculative.”
Truthout Is Preparing to Meet Trump’s Agenda With Resistance at Every Turn
Dear Truthout Community,
If you feel rage, despondency, confusion and deep fear today, you are not alone. We’re feeling it too. We are heartsick. Facing down Trump’s fascist agenda, we are desperately worried about the most vulnerable people among us, including our loved ones and everyone in the Truthout community, and our minds are racing a million miles a minute to try to map out all that needs to be done.
We must give ourselves space to grieve and feel our fear, feel our rage, and keep in the forefront of our mind the stark truth that millions of real human lives are on the line. And simultaneously, we’ve got to get to work, take stock of our resources, and prepare to throw ourselves full force into the movement.
Journalism is a linchpin of that movement. Even as we are reeling, we’re summoning up all the energy we can to face down what’s coming, because we know that one of the sharpest weapons against fascism is publishing the truth.
There are many terrifying planks to the Trump agenda, and we plan to devote ourselves to reporting thoroughly on each one and, crucially, covering the movements resisting them. We also recognize that Trump is a dire threat to journalism itself, and that we must take this seriously from the outset.
After the election, the four of us sat down to have some hard but necessary conversations about Truthout under a Trump presidency. How would we defend our publication from an avalanche of far right lawsuits that seek to bankrupt us? How would we keep our reporters safe if they need to cover outbreaks of political violence, or if they are targeted by authorities? How will we urgently produce the practical analysis, tools and movement coverage that you need right now — breaking through our normal routines to meet a terrifying moment in ways that best serve you?
It will be a tough, scary four years to produce social justice-driven journalism. We need to deliver news, strategy, liberatory ideas, tools and movement-sparking solutions with a force that we never have had to before. And at the same time, we desperately need to protect our ability to do so.
We know this is such a painful moment and donations may understandably be the last thing on your mind. But we must ask for your support, which is needed in a new and urgent way.
We promise we will kick into an even higher gear to give you truthful news that cuts against the disinformation and vitriol and hate and violence. We promise to publish analyses that will serve the needs of the movements we all rely on to survive the next four years, and even build for the future. We promise to be responsive, to recognize you as members of our community with a vital stake and voice in this work.
Please dig deep if you can, but a donation of any amount will be a truly meaningful and tangible action in this cataclysmic historical moment.
We’re with you. Let’s do all we can to move forward together.
With love, rage, and solidarity,
Maya, Negin, Saima, and Ziggy