Until yesterday, the hot “did President Trump just break the law” question was whether his phone call last Sunday with Georgia officials asking them to “find” enough votes to overcome Joe Biden’s margin of victory there crossed that line.    

As bad as that was, it was nothing compared to what the President did yesterday when he finally spoke up while his armed mob roamed the Capitol, intent on intimidating Congress into throwing the Electoral College vote. Ostensibly meant to calm the situation, from the very first sentence of his video message the theme was exactly what it has been for the past two months: the election was stolen from him and that the rioters’ anger was entirely justified. He managed to utter the obligatory words that the rioters should be peaceful and go home, but followed that immediately with “we love you, you’re very special.”  That was as pure “nudge, nudge, wink, wink” as can be imagined; no one watching it could doubt that Trump meant to encourage precisely the behavior he was supposedly condemning. Twitter, for example, recognized this immediately, flagging the video with, “This claim of election fraud is disputed, and this Tweet can’t be replied to, Retweeted, or liked due to a risk of violence.” (My italics.) More followed, e.g., tweeting, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.” Even the following “go home with love & in peace” was immediately negated by “Remember this day forever!” 

This is criminal behavior far beyond mere tampering with election results (although this is not “treason”, which is “levying war” against the U.S. or “adhering to” its enemies.)  Rather, we are in the realm of insurrection, rebellion, sedition, and overthrow of the Government. 

Encouraging the rioters to help illegally keep him in power makes the President someone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof,” and he is “advocating overthrow of Government”, because he “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States  . . .  by force or violence.” And, if the President crafted his message with the help of his advisors or family members, then we’re looking at ”seditious conspiracy,” which is when “two or more persons . . .  conspire to overthrow, put down, or to destroy by force the Government of the United States, . . . or to oppose by force the authority thereof.”  Given that only minutes before his video went up Ivanka Trump had tweeted that the rioters were “patriots,” that is not unlikely.

Courts have been justifiably reluctant to criminalize speech, especially political speech. Like everyone else, the President has the constitutional right to say what he wants, including the right to encourage violence. But this video crosses the line established in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  No matter how inflammatory his earlier language to his audience on the Ellipse, it did not cross that line; “imminent” violence means right then and there. But telling an angry, armed mob occupying the U.S. Capitol that their grievances are entirely justified was clearly intended to incite his supporters to further violent behavior and was likely to produce just that result; the occupation continued, and even greater violence was avoided only by flooding the Capitol with police and the National Guard.

After this, there is every reason to fear the very worst: that on January 20, Donald Trump will take the oath of office, formally claim that he is the rightful President of the United States, and encourage his supporters to take matters into their own hands. Short of a foreign invasion, having a master demagogue like Donald Trump whipping up a mob from among the 74 million people who voted for him to violently resist the legitimate administration is the most frightening prospect imaginable, especially as we just witnessed the Capitol Hill police colluding with his thugs. We will have another civil war on our hands (and this time with the rebels claiming to be the government of the entire country).

Rather than gambling on whether this will happen, the incoming Biden administration must now make it absolutely clear that such actions will result in criminal charges for Trump and anyone assisting him. I do not know whether Trump should be prosecuted for his previous actions–there are strong arguments on both sides of that question–but this would be a no-brainer. The only strategy for preventing this nightmare scenario is to immediately lay down the law and promise swift arrest and prosecution. After what we saw yesterday, we cannot afford to wait and trust Donald Trump’s better nature.