Earlier today, former President Donald Trump once again claimed he bore no responsibility for the violence at the U.S. Capitol on Jan. 6, 2021. “I said peacefully and patriotically,” Trump told reporters. That has been a persistent theme of his for years. The former president was repeating part of a short sentence culled from his lengthy speech at the White House Ellipse on Jan. 6, 2021. By focusing on that brief phrase, Trump is trying to deceive both the courts and the public. He wants people to focus on a short passage in which he told his supporters to march “peacefully and patriotically” to the Capitol, while ignoring all the inflammatory rhetoric he employed during the same speech.
With the federal election conspiracy case likely now on track for summer 2024 and Trump making many more public appearances over the course of this year, we can expect to see this line of defense play out in both the court of public opinion and in the run-up to the federal criminal trial (and the Georgia one where a 2024 trial has also been requested by prosecutors).
As we explain in detail below, Trump’s defense should fail in both those tribunals. We expect prosecutors will explain to the jurors why the sentence in the Ellipse speech is, in actuality, more incriminating than exculpatory when understood in context. Indeed, evidence uncovered by the January 6th Select Committee shows that Trump deliberately and repeatedly implored his followers to “fight” – and was reticent to use the word “peaceful” at all. Recent revelations of evidence gathered by Special Counsel Jack Smith will also help prove the case.
As we ramp up to trial, the general public should also not be led astray by the discourse. That requires journalists, commentators, and others to understand and communicate the truth about Trump’s Jan. 6 speech and other statements. We offer this essay as a contribution to that effort as well.
Trump’s Claimed Line of Defense
The key sentence in the Jan. 6 Ellipse speech, according to Trump and his attorneys, is this one:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Trump and his lawyers have made that sentence a centerpiece of his defense since the very first legal proceeding arising out of Jan. 6– namely, his impeachment and Senate trial. Trump’s Oct. 13, 2022 letter to the January 6th Select Committee bore the heading, “PEACEFULLY AND PATRIOTICALLY” in all caps. Where the law now threatens him most, in a DC federal court, Trump and his lawyers claim that he does not bear any criminal responsibility for the events that followed his speech on Jan. 6, 2021, because he encouraged his supporters to march “peacefully and patriotically” down to the Capitol.
Assessing the Full Record
The full weight of the evidence – first collected by the January 6th Select Committee and now Special Counsel Jack Smith’s office – tells a very different story. And it is a damning one for Trump’s defense. Indeed, the record includes strong evidence that Trump supported the use of violence on Jan. 6 and tried to use it to his political advantage to block the certification of the election. That is in the context in which the one reference to “peacefully and patriotically” in the Ellipse speech will be understood by the jury and should be understood by the American public.
The January 6th Select Committee found that the words “peacefully and patriotically” were drafted by Trump’s speechwriters – not Trump. Those two words were also completely at odds with the rest of Trump’s highly inflammatory remarks, during which he retold multiple lies about the election and directed the crowd’s anger at Vice President Pence and lawmakers. While Trump uttered the word “peacefully” just one time during his speech, which lasted more than an hour, he used variations of the word “fight” 20 times. That was Trump’s authentic voice. Though Trump knew the assembled crowd was “angry,” he ad-libbed the word “fight” on approximately 18 occasions. Trump also personally added multiple incendiary lines, including this one:
“We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore.”
Footage obtained by Just Security showed the crowd’s immediate reaction to his incendiary words (the footage was used in the impeachment trial and by the select committee).
It is obvious that the three speechwriters’ words – “peacefully and patriotically” – were inconsistent with the real purpose of Trump’s remarks: to have his followers go to the Capitol and “fight like Hell” to disrupt the proceedings.
Prior to January 6th, Trump refused to call for that day to be “peaceful.” In her congressional testimony, Hope Hicks, one of Trump’s closest advisors throughout much of his presidency, recalled telling Eric Herschmann, a White House lawyer, that the president should issue a statement calling for people to be “peaceful.” Hicks made this suggestion on both Jan. 4 and Jan. 5, 2021. She observed that Trump was regularly tweeting about the upcoming event and she thought that one of the tweets “could include the word ‘peaceful,’” state “that this would be peaceful event,” and remind “everyone to be peaceful.” Hicks explained that she wasn’t necessarily concerned about the prospect of Trump’s supporters becoming violent, but she worried that there would be “some kind of clash with counter protesters.”
Trump refused to use the word “peaceful” in any of his pre-Jan. 6 tweets. According to Hicks, Herschmann told her “that he had made the same recommendation directly to the President and that he [Trump] had refused.” Herschmann explained that Trump did not want to call on people to be non-violent because that “would insinuate that there could be violence.” Trump thought this “might discourage people from attending and the crowd would therefore be smaller,” Hicks testified. Simply put, Trump was worried about the size of his crowd, not whether anyone in attendance was “peaceful.”
A recent report from ABC News provides additional details concerning what Special Counsel Jack Smith has learned about Trump’s behavior during the attack – including testimony concerning his reluctance to use the word “peaceful.” At 2:24 p.m., while the attack was well underway, Trump tweeted:
Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!
Trump himself authored this tweet, according to ABC News’s sources. Shortly after it was posted, White House Counsel Pat Cipollone and another lawyer confronted Trump’s social media guru, Dan Scavino, demanding to know why such an incendiary statement was posted on the president’s Twitter account. “I didn’t do it,” Scavino told the lawyers. After Trump’s advisors advised him the tweet was “not what we need,” Trump responded: “But it’s true.” And when Nick Luna, a presidential aide, informed Trump that Vice President Pence had to be moved to a secure location, Trump replied: “So what?”
It is for fact checkers, journalists and other commentators to ensure all Americans understand the complete record and the truth.
The January 6th Committee learned that “[a]lmost immediately” after Trump posted the 2:24 tweet, Herschmann (the White House lawyer) asked the president’s daughter, Ivanka Trump, to intercede. Ivanka then “rushed down to the Oval Office dining room,” where she “persuaded President Trump that a tweet could be issued to discourage violence against the police.” According to Sarah Matthews, the White House Deputy Press Secretary, Trump resisted using the word “peaceful” even at this juncture – and only agreed to include it in a tweet after Ivanka pressed for it.
ABC News’ sources add that Scavino “printed out proposed messages to post on Twitter, hoping that Trump would approve them despite his reluctance to write such posts himself.” At 2:38 p.m., the following message was posted on Trump’s Twitter account:
Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!
The Special Counsel has learned that Trump did not post these words on Twitter at all – Scavino did.
The contrast between the 2:24 p.m. and 2:38 p.m. tweets could not be any clearer. They should also be understood in the broader context. In the days leading up to January 6th, Trump repeatedly and falsely assured his supporters that he could remain president, but only if Vice President Pence intervened on his behalf during the joint session of Congress. Trump repeated these false claims about Pence during his speech on January 6th, personally inserting and ad-libbing some of the most provocative language. In fact, initial drafts of Trump’s speech did not directly reference Pence at all. But when he spoke, Trump once again lied to his supporters, falsely claiming that Pence had the power to hand him the presidency. “All Vice-President Pence has to do is send it back to the States to recertify, and we become president, and you are the happiest people,” Trump said.
Pence repeatedly made it clear to Trump that he would not seek to overturn the election’s results – an act that would have required the Vice President to violate his oath to the U.S. Constitution. Undeterred, Trump sent a mob to the U.S. Capitol to “fight like Hell” and to intimidate his own Vice President. And then, during the attack, Trump used Twitter to direct the mob’s anger at Pence one more time.
This, again, was Trump’s authentic voice. The president’s belated call to be “peaceful” at 2:38 p.m. came from his aides.
The January 6th Committee learned that multiple Trump confidantes, including Donald Trump, Jr. and several Fox News personalities, made private appeals at the time that the 2:38 p.m. posted by Scavino was insufficient to quell the assault. “He’s got to condem [sic] this shit. Asap. The captiol [sic] police tweet is not enough,” Trump, Jr. wrote in a text to White House Chief of Staff Mark Meadows. Then, at 3:13 p.m., another tweet posted on Trump’s called for “everyone at the U.S. Capitol to remain peaceful” and emphasized “No violence!” Police officers had been under assault for more than two hours at the point. Still, President Trump did not tell his followers to leave the U.S. Capitol. It was not until 4:17 p.m. that Trump released a video telling his supporters they needed to go home and “[w]e have to have peace” – a command that many rioters quickly obeyed. In that video, however, Trump openly sympathized with the rioters’ cause, telling them: “I know your pain, I know you’re hurt. We had an election that was stolen from us.”
In a statement on Twitter that evening at 6:01pm, Trump made a statement justifying the acts of that day. “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away.” Smith may also use this statement as an admission by Trump that the assault on the Capitol was a foreseeable consequence of telling the mob that his landslide victory had been stolen from them. “Remember this day forever!” Trump wrote.
Indeed, courts have directly addressed and rejected Trump’s defense that he told the rally goers at the Ellipse to act “peacefully and patriotically.” In a civil case in DC federal district court, Judge Amit P. Mehta recognized essentially the same context that we have outlined above. Judge Mehta wrote:
“The President also contends that a conspiracy involving him not only is ‘far-fetched, but it is also in direct opposition to many of the statements made by Mr. Trump at the very rally.’ The only portion of the Speech he cites to support that proposition is that, early on, he said that rally-goers soon would be ‘marching over to the Capitol building to peacefully and patriotically make your voices heard.’ The President certainly uttered those words. But he also uttered others, which he ignores. Immediately before directing them to the Capitol, he told rally-goers that they would need to ‘fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.’ When those supporters did ‘fight like hell,’ just as he had told them to, the President did not demand they act ‘peacefully and patriotically.’ He instead tweeted that ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country.’ Later, he referred to those who had attacked the Capitol as ‘great patriots,’ and told them to, ‘Remember this day forever!’ These other statements by the President stand in stark contrast to his passing observation that rally-goers would soon be ‘peacefully and patriotically’ marching to the Capitol.”
Relying on expert testimony, Colorado state district court judge Sarah B. Wallace also rejected Trump’s defense. Judge Wallace wrote:
“As Professor [Peter] Simi testified, Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence’ to develop and deploy a shared coded language with his violent supporters. 10/31/2023 Tr. 221:10–21. An understanding had developed between Trump and some of his most extreme supporters that his encouragement, for example, to ‘fight’ was not metaphorical, referring to a political ‘fight,’ but rather as a literal ‘call to violence’ against those working to ensure the transfer of Presidential power. 10/31/2023 Tr. 66:7–20, 101:8– 102:6. While Trump’s Ellipse speech did mention ‘peaceful’ conduct in his command to march to the Capitol, the overall tenor was that to save the democracy and the country the attendees needed to fight.”
There is much more evidence concerning Trump’s behavior before and during the attack on the U.S. Capitol. Late last year, Trump’s defense counsel in the federal Jan. 6 case tried to get the court to strike all of it from the Special Counsel’s indictment. It’s clear why – Trump’s lone call for his supporters to march “peacefully and patriotically” will not hold up to scrutiny.
Though Trump is not directly charged with inciting the riot, the Special Counsel has charged the former president with three counts of conspiracy – including to defraud the United States, obstruct the January 6 congressional certification proceeding and interfere with voters’ constitutional right to have their votes counted – as well as a fourth count, obstruction of and attempt to obstruct the January 6 official proceeding. And the Special Counsel has argued that Trump’s “actions before, during, and after the riot at the Capitol are powerful and probative evidence of his motive and intent for each conspiracy and for the obstruction charge.”
Ultimately, District Judge Tanya Chutkan ruled in favor of the Special Counsel and rejected Trump’s bid to have this evidence excluded from his trial. That means jurors will likely hear all the details discussed above – and more.
Trump can’t get away with whitewashing his responsibility for the Jan. 6 attack in Chutkan’s courtroom – but that does not mean he won’t also try it in the court of public opinion. As demonstrated by his Jan. 6 anniversary speech and subsequent comments, Trump and his surrogates can be expected to continue making his false “peaceful and patriotic” claims about Jan. 6 to the public. It is for fact checkers, journalists and other commentators to ensure all Americans understand the complete record and the truth.