“Fight for Trump”: Video Evidence of Incitement at the Capitol

How direct is the connection between what President Donald Trump communicated to his supporters and their actions in laying siege to the U.S. Capitol? Videos recorded by many individuals over the course of the day provide some answers. A portion of these videos have not been seen widely before, including video footage largely from the platform Parler showing how the crowd reacted in real time to some of the most potent lines in Trump’s speech at the Ellipse. The videos, along with other information in the public record, provide strong evidence of a causal link between Trump’s messages to his supporters and their dangerous, illegal conduct. The collection of videos, viewed chronologically, also shows the ways in which Trump placed the life of Vice President Mike Pence, among others, in grave danger.  

What’s revealed by these videos is not only relevant to the impeachment trial of Trump, where the House has charged that Trump “willfully made statements that, in context, encouraged—and foreseeably resulted—in lawless action at the Capitol.” The video evidence may also be relevant to an investigation by the Attorney General of the District of Columbia for potential incitement to riot. And it may be relevant down the road to other federal prosecutors. Ultimately, the greatest relevance of these videos will be how parts of the public understands the events of the day, and how history records it.   

Below is the video followed by reactions to it from former senior Justice Department officials and former federal prosecutors.

The video segments sourced from Parler include a number of clips made publicly available previously by ProPublica, as well as separate footage that has not been widely referenced in the news media that was made available for download following the much publicized scraping of publicly available information from the Parler site. 

“Fight For Trump” Just Security – Incitement at US Capitol  (click on “CC” to see the captions).

Views of Former Senior Justice Department Officials and Federal Prosecutors 

Paul Butler (@LawProfButler), former federal prosecutor with the Public Integrity Section of the U.S. Department of Justice:

The video contains strong evidence that Trump did incite the insurrection, regardless of whether that was his intent. The rioter’s words “we were invited here” were exactly right, and the refrain “fight for Trump” was directly responsive to Trump’s demand. In criminal law, we would say this video proves the act but perhaps not the mental state – that Trump intended to cause the insurrection or knew it would happen as a result of his words. 

It would be difficult to convict Trump in a criminal court because of the high level of proof required but the standard for impeachment is different. The circumstantial evidence, including Trump’s bellicose words, his reported glee at the invasion of the Capitol, and his failure to immediately speak out against the violence, and his ultimate stunningly weak admonition to the insurrectionists to “go home” should persuade most Senators that he was either intentional or extremely reckless. His culpability is enhanced because the stakes were so high – Trump seemed willing to risk people’s lives and our democracy in service of a lie about the integrity of the election. 

At minimum, the video makes a strong case that everyone who illegally occupied the Capitol should be prosecuted – no member of that angry mob was an innocent bystander (plus the idea that prosecuting roughly 800 people would overwhelm the courts is ludicrous in a country where more than 10 million people are arrested each year).

Stuart M. Gerson, former Acting Attorney General of the United States, Assistant Attorney General, and Assistant United States Attorney:

Unable effectively to lead a country beset with a pandemic and critical challenges from foreign adversaries, Donald Trump gave criminal aid and comfort to a mindless minority whose aim was to overthrow its constitutional government and replace it with an autocracy alien to the republic our founders gave us. Just Security‘s important and insightful video demonstrates just how close we came to losing that treasured republic. Trump will be remembered, if at all, as a would-be dictator, a narcissist beset by irrational grievances, tolerant, even encouraging of racism, and a threat to the rule of law and the will of a free people. He appealed to the worst in us at a time when we critically need to call upon what is the best in us. Now, the protective shield of national office gone, Donald Trump must face the judgment of the Senate concerning his fomenting of insurrection and improper interference in the electoral process, and the judgment of citizen-juries in potential federal and state criminal cases against him.

Elie Honig (@eliehonig), former Assistant United States Attorney for the Southern District of New York, former Director of the New Jersey Division of Criminal Justice:

The House impeachment managers should consider rolling this tape as their final exhibit at the trial. It shows, clearly and viscerally, how President Trump’s words in fact incited the insurrectionist mob — particularly when taken in combination with Trump’s own tweet, after the riot, praising the mob as “great patriots” who should “remember this day forever.”

Harry Litman (@harrylitman), former U.S. Attorney for the Western District of Pennsylvania and former Deputy Assistant Attorney General:

From a legal standpoint, a prosecutor in a case charging Trump with seditious conspiracy would play this tape in an opening, and then say, “Ladies and Gentlemen of the Jury, the evidence will show that the insurrectionists came to Washington that day because they believed the President had called them there to do their patriotic duty; once there, the President worked them into a demented rage, telling them they had to fight like hell, and that he would be there with them at the Capitol. They went with blood in their eyes screaming ‘Fight for Trump!,’ threatening the lives of Nancy Pelosi and Mike Pence, and proceeded to storm and lay waste to the Capitol, the sanctum of our democracy, all while President Trump viewed the bedlam with delight from his safe perch back at the White House. They were criminals and deserved to be punished; but any fair-minded person will see from this evidence and more that we will bring forward that it was the President who lit the match and threw it on the fire because he wanted – and at a minimum reasonably foresaw – that they would become an out-of-control mob.”

Renato Mariotti (@renato_mariotti), former Assistant United States Attorney in the Securities and Commodities Fraud Section of the United States Attorney’s Office for the Northern District of Illinois:

It is clear from the video that at least some of the insurrectionists believed that they had been told by Trump to storm the Capitol and that they literally believed he was at the Capitol with them. In evaluating whether Trump’s words incited violence, courts would consider all of the facts and circumstances around his statements, including how they were understood by his audience. The fact that at least some of his audience understood him to be personally leading them on an attack on the U.S. Capitol suggests that Trump was inciting imminent lawless action, which a court would consider and the Senate should consider when it weighs whether to convict Trump.

Mary McCord, former Acting Assistant Attorney General for National Security, Principal Deputy Assistant Attorney General for the National Security Division, Assistant U.S. Attorney for the District of Columbia:

Trump’s legal culpability depends on his intent when he made repeated false claims that the election had been stolen, encouraged his supporters to travel to Washington, D.C., on January 6, and exhorted them to go to the Capitol and “fight like hell” and “show strength.” He had reason to know that his followers would act on his words because they’ve done so before–storming state Capitols against state-imposed public health orders during the pandemic and threatening state election officials not to certify the vote for Biden, just to name a few. If he knew that they were planning to use violence at the Capitol when he spoke to them before the siege, he could bear legal responsibility for inciting insurrection. And he certainly bears moral responsibility, as the video shows that many in the mob believed they were doing exactly what Trump asked them to do.

Jennifer Rodgers (@JenGRodgers), former Deputy Chief Appellate Attorney of the U.S. Attorney’s Office for the Southern District of New York:

The evidence in this video strengthens the case against President Trump for inciting an insurrection by showing the direct line from Trump’s statements to the violent actions of the insurrectionists. The juxtaposition of statements makes clear that the insurrectionists came to Washington at Trump’s behest, they chanted the (baseless) slogans he taught them, they explicitly targeted the enemies he identified for them (most notably Vice President Mike Pence), and they followed his instructions to the letter to “be strong” and “fight” like a “boxer” by marching to the Capitol and delivering the message he fed them — which was no less than that the elections results Congress was in the process of certifying should be thrown out. Put up against the timeline of Trump’s actions that day, including that he waited hours after the violence began to say anything at all, and even then did not condemn what was happening, a compelling case can be made that not only did the insurrectionists believe that what they were doing what Trump wanted, but that it actually was what Trump intended. And of course other evidence of Trump’s many and varied efforts to overturn the election, much of which is still being developed, supports that conclusion. I think there is overwhelming evidence that Trump should be convicted by the Senate, and that even with the elevated burden of proof in criminal cases, there is now more than enough to justify a criminal prosecution as well. 

Joyce White Vance (@JoyceWhiteVance), former U.S. Attorney for the Northern District of Alabama:

From a legal point of view, the key question any criminal exposure the former president may have turns on his state of mind. In the video, we see many of his followers, who believe they are acting on his orders. But the question a jury would have to decide is what was in Trump’s mind that morning on the Ellipse (and in his previous tweets/statements), not just how people reacted. For instance, in order to prove someone committed the crime of soliciting violence in violation of 18 USC § 373, the government has to establish that the defendant acted, “with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States.” In the video, we hear Trump tell the crowd to act “peacefully.” I would expect his lawyers to focus on that. But, he also says “we fight, we fight like hell. If you don’t you’re not going to have a country anymore.” So when we talk about proof in court, prosecutors will have to prove beyond a reasonable doubt that he intended the “fight” part, not the “peaceful” part. Trump’s prior awareness that his followers take him literally and act on his words, as well as his “delight” as opposed to horror when he learned the Capitol was being overrun and failure to do anything to tamp down on the insurrection, suggest prosecutors may have fertile ground to seek evidence in here.

As to the moral question, we see a president set the mob on the Capitol, Democratic leaders and even his own vice president, desperate to use force to retain power after losing an election. There can be no argument that this conduct is anything other than abhorrent and that Trump, in the words of Federalist 65, must be convicted on the impeachment charge of insurrection against him, because he has abused and violated the public trust.

Andrew Weissmann (@AWeissmann_), lead prosecutor in Robert S. Mueller’s Special Counsel’s Office, former Chief of the Fraud Section in the Department of Justice, and former General Counsel for the FBI:

Under the criminal law, a person is presumed to intend the natural and foreseeable consequences of his actions. What happened on 1/6 meets both prongs to establish criminal intent for incitement. Moreover, If Trump did not intend there to be violent rioting, his actions during and after the violence would have been abject horror and strenuous efforts to stem and condemn the violence. That did not occur. 

 

Editor’s note: Readers may also be interested in Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol by Ryan Goodman, Mari Dugas and Nicholas Tonckens

Sources for video:
Special thanks to ProPublica for its excellent repository of Parler videos. A review of two hundred additional videos from Parler was conducted with special assistance from Vidrovr, a company that makes video searchable. Thanks to The New Yorker, CNN, and CBS 11 Dallas-Forth Worth for their coverage. 
https://projects.propublica.org/parler-capitol-videos/
https://www.kaggle.com/jpmiller/parler
https://www.cnn.com/videos/politics/2021/01/09/trump-capitol-riot-cooper-kth-sot-ac360-vpx.cnn
https://www.youtube.com/watch?v=270F8s5TEKY
https://www.youtube.com/watch?v=iGX4jO3rG8g&feature=emb_logo
https://www.youtube.com/watch?v=6iIolquHaU0&feature=youtu.be
https://www.youtube.com/watch?v=pa65Ssvs-wY
https://www.youtube.com/watch?v=5NtYIANgkvA
https://www.youtube.com/watch?v=p8PHImxb8Po
https://omny.fm/shows/hugh-hewitt-podcast
Trump tweet archive
https://www.thetrumparchive.com/
Pence tweet
https://twitter.com/Mike_Pence/status/1346879811151605762

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Justin Hendrix

Cofounder and CEO of Tech Policy Press and a researcher on disinformation and emerging media technology. Opinions expressed here are entirely his own. Follow him on Twitter (@justinhendrix).