After Donald Trump’s second impeachment trial ended in acquittal, Senate Minority Leader Mitch McConnell (Kentucky) suggested that the former president could still face civil or criminal liability for his role in the Capitol riot, which was place a year ago last Thursday. But as three lawsuits heard by a federal judge this week show, those options require proving that Trump intentionally provoked the violence that day, and that’s quite a challenge.
Trump supporters who broke into the Capitol, disrupting the congressional counting of the presidential election results, came to Washington on his orders. They were motivated by Trump’s fantasy of a stolen election, which he had promoted for months and repeated in an impassioned speech before the riot at a rally a mile and a half from the Capitol.
“I know that everyone here will soon go to the Capitol to speak out peacefully and patriotically,” Trump said. Although he was not an advocate of violence, it was predictable that at least some of his supporters would interpret his call to “fight like hell” to defend a supposedly threatened democracy as a justification for the utilize of force.
Still, there is a huge difference between reckless rhetoric protected by the First Amendment and the criminal conspiracy described in the lawsuit filed by Republican Eric Swalwell (R-Calif.), other House Democrats and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to utilize threats, force and intimidation to prevent government officials from carrying out their duties.
To prove this claim, plaintiffs must do more than show that Trump stoked his supporters’ outrage with false claims of election fraud, or even that he did so in circumstances where he should have known violence was likely. They must show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Biden’s victory, in which Trump himself knowingly participated.
Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that makes it a crime to “willfully incite or induce others to participate in a riot.” In addition to the requirement that the crime be committed “intentionally,” prosecution for incitement is circumscribed by the First Amendment.
Even the promotion of illegal conduct, as the Supreme Court held in the 1969 case of Brandenburg v. Ohio, is constitutionally protected unless it is not only “likely” to encourage “imminent unlawful action” but also “is directed to do so.” Another exception to the First Amendment for “true threats” includes “statements in which the speaker intends to express seriously an intention to commit an act of unlawful violence against a specific person or group of persons.”
In a letter supporting Swalwell’s lawsuit, the three law professors, joined by legendary First Amendment lawyer Floyd Abrams, argue that these exceptions “probably apply here.” But whether this is the case depends on what we assume Trump had in mind when he made his speech.
Trump clearly urged Mike Pence, for example, to throw away electoral votes for Biden – a power the vice president didn’t actually have. But Trump did not threaten Pence with an “act of unlawful violence,” and drawing out such a threat requires speculation about what Trump was trying to convey in airy of what his supporters later did.
Similarly, it is not at all obvious that Trump wanted inciting a riot that failed to achieve his supposed goal led to his second impeachment and drew fierce criticism from Republican lawmakers like McConnell. If this was all part of a plan, it was a pretty stupid plan.
The desire to punish Trump for his reckless rhetoric is understandable but risky. If his opponents succeed, they may regret setting a precedent under which speakers who do not practice or preach violence can be held legally responsible for audience behavior inspired by their words.

