This article is not primarily political, though it is about politics. Rather, it is about right and wrong. It is about truth and lies. It is about the intersection of High Crimes, Misdemeanors, Law, and Truth.
Did President Donald Trump seek to incite an insurrection, a coup, on January 6? That is the only question that should be asked and analyzed when the topic is whether President Donald Trump sought to incite an insurrection, a coup, on January 6.
The problem is that the question continually elicits wide-ranging discussions about ancillary topics that have absolutely nothing to do with whether President Donald Trump sought to incite an insurrection, a coup, on January 6. Thus, the discussion rapidly digresses into advocates and opponents heatedly debating:
There are other ancillary topics like the above five. None of them is germane to the gravamen of this article. The only matter that is germane as to whether President Donald Trump sought to incite an insurrection, a coup, on January 6 is whether President Donald Trump sought to incite an insurrection, a coup, on January 6.
Donald Trump is a businessman, a developer. He builds skyscrapers and gambling casinos, golf courses, hotels. He also skipped the usual political career trajectory en route to becoming president of the United States. In that last role, he proffered and implemented ideas, appointed people to offices, executed laws, contemplated budgets, negotiated with legislators for funding, drove an economy, made speeches, campaigned, and played a bunch of golf ostensibly as his main form of physical exercise for a job that entails enormous amounts of sitting.
As a public speaker and campaigner, Donald Trump has excelled at addressing mass crowds in confined spaces: indoor arenas, stadium settings, airport hangars. He can speak for more than an hour, make jokes, orally slash opponents, use rhetorical devices to enthrall a crowd, mock enemies, egg on his audience to boo the Mainstream Media, motivate masses to chant slogans like “Lock Her Up” (which he never did nor tried to do nor intended to do), “Drain the Swamp,” and “USA! USA!” He undertook to make America great again. Because this article is not aimed at political advocacy, the reader is invited to make his or her own determination as to whether that undertaking bore fruit.
Yet there are other things about which Donald Trump knows absolutely nothing. In those areas, he lacks the training or the experience or the intuitive know-how — or all the above. For example, he does not know how to learn and study and teach the Tosafot commentaries on the Babylonian Talmud. Perhaps he rapidly could deduce which way to hold the book — itself not as obvious as may seem — but he would be out of his element the moment he opened any such volume, even if he knew from which side to open it. The text is in Aramaic with a mix of Hebrew block letters and a second font known as “Rashi Script.” From there, any effort by him at Talmudic erudition would go further downhill. That does not take away from his strengths. It just is. He does not know from Gemara.
Another area outside Donald John Trump’s fields of expertise — at least until January 6, 2021 — is conducting and controlling an angry public street demonstration of tens of thousands of law-abiding but intensely dismayed civilians who have congregated in an open-air, non-confined space. He never did it before. He does not know its dynamics. Over the past four years he may have learned a bit about crowd control and group dynamics inside a stadium or arena. He does not know the sociology of street protest nor its practical dynamics.
By contrast, I know those dynamics. He went to Wharton School to study business. I went to Columbia University in the early 1970s to study the social sciences: political science, history, sociology, comparative religion. There were rowdy demonstrations on campus all the time. I come from the era of Kent State riots and Jackson State riots. Those upheavals extended to Manhattan’s Morningside Heights. It was a time of the Southern University riots, the University of Maryland riots, Wounded Knee, and general Vietnam War protest riots. Columbia was the place to be to attend riots or — if you were politically conservative like me — to watch them from Butler Library or Carman Hall or Ferris Booth Hall. I literally watched as protests got out of control, as university security got overwhelmed and thus called frantically for outside help, as police then surged onto campus with batons swinging indiscriminately. For a brief time, during the two years I represented the undergraduate student body in the University Senate, I became a little bit close with then-University President William J. McGill, and I recall his anguish when police had been called onto campus to quell a mob, and the ensuing violence had resulted in many students bleeding profusely. McGill was determined not to bring police on campus again.
But Columbia for me was only an academy of street protest; there also was my laboratory. I was actively engaged in the anti-communist movement to free Jews from the Soviet Union. For three years I attended my share of street protests outside the Soviet Union’s New York Consulate and Diplomatic Mission to the United Nations. It was on Manhattan’s East 67th Street between Lexington and Third Avenue, just across the street from an Orthodox synagogue and just down the block from the New York Police Department’s 19th Precinct. I participated in protests, shouting the slogans of “Svoboda!” “Mother Russia, I’d Rather Be an Orphan!” “Free Soviet Jewry!” and “Let My People Go!” We had the rhythmic chants: “1-2-3-4: Open Up the Iron Door! 5-6-7-8: Let My People Emigrate!” “What Do We Want? Freedom! When Do We Want It? Now! Freedom Now! Freedom Now!”
Over those three years during a very different time in my life that unfolded nearly half a century ago, I learned at the “67th and Third Laboratory” that many protest rallies went exactly as announced. And that others got out of hand. I learned that an angry street protest is an unpredictable event. Because I planned back then to become either an attorney or a rav (Orthodox rabbi) or a professor or a writer after graduating from college, I learned quickly from what I witnessed as a politically conservative outsider at Columbia riots how to comport myself and where to position myself at Soviet Jewry rallies. I gained a strange but valuable skill set during those three years — like my skill set in learning, studying, and teaching the Tosafot commentaries on the Babylonian Talmud, among the few fields that I came to master but that Donald Trump never learned.
When the president spoke to that assemblage on January 6, he comported himself exactly as he lawfully has done scores of times, even hundreds of times, when addressing mass rallies at confined arenas, indoor stadium settings, and airport hangars. It was the same speech, the same tones, the exact same Trump in the exact same element that his public political friends and supporters have loved and praised for four years, while his enemies have chided and castigated. It was not Madonna inciting a crowd by speaking of blowing up the White House. It was not Kathy Griffin holding a replica of a blood-soaked decapitated head. It was not a Shakespeare in the Park performance choreographed in New York’s Central Park to suggest the assassination of the president of the United States. Rather, it was a speech Trump had given so often that he could have recited it by heart. And for good measure, he urged his tens of thousands of followers to march peacefully to express themselves at the Capitol, just as I had done in the 1970s with tens of thousands of others calling on the Soviet Union to free Soviet Jewry.
I have been an attorney for more than 20 years, litigated on the front lines in the biggest of cases, served as a former Chief Articles Editor of one of America’s most respected law reviews, been an adjunct law professor for 16 years, and more. My politics is my subjective politics, but the law is the objective law. Under the law — criminal law — there is a concept known as mens rea. That Latin term derives from the phrase: “actus reus non facit reum nisi mens sit rea” (“The act is not culpable unless the mind is guilty”). There is no crime of incitement nor any crime at all here if the acting party had no intention to incite a crowd to act unlawfully. One may hate and despise Trump all he or she likes. Others may love and adore him. That is how our society always has functioned until now. But that is all beside the point of whether President Donald Trump sought to incite an insurrection, a coup, on January 6.
I have played and watched — several times — the full actual speech that Trump delivered on January 6. Any fair person who listens to the embedded link especially for one minute between 18:00 and 19:00 — and particularly to the words at 18:47–18:56 — cannot but recognize that President Trump, lacking even a bare modicum of training or hands-on experience in the dynamics of street protest, an area completely outside his many, many fields of remarkable expertise, never intended for an unlawful assemblage nor for violence of any kind to take place. An insurrection or coup was the furthest thing from his mind. For him it was one more motivating speech, one more chance to assure his most devoted followers that, as long as they stand with him, he will not back down in his efforts to gain a lawful, legal investigation into the veracity of the reported November 3 presidential election results. Be fair and listen objectively to the speech, especially at the one-minute section that plays at 18:00–19:00 at this link. Read the transcript.
On the subject of whether President Donald Trump sought to incite an insurrection, a coup, on January 6, only one question deserves to be asked and analyzed: whether President Donald Trump sought to incite an insurrection, a coup, on January 6. Everything else is politics: for Mainstream Network Media and the cable ones — CNN, MSNBC, Fox News, and Newsmax — to wrestle over and battle out ad infinitum, for Family Thanksgiving fights and for debating during family Easter gatherings and during the “shulchan orekh” dinner portion of the Passover Seder. But nothing else is relevant to the question as to whether President Donald Trump sought to incite an insurrection, a coup, on January 6. On that one subject, politics should not enter because it is so important for Trump’s most ardent supporters, most determined opponents, and for America’s future generations to know whether an American president ever has sought to incite an insurrection or a coup against our constitutional government of laws.
It is a shame that such an urgently important subject cannot be discussed honestly in today’s American environment. If it could, the subject would have been discussed and concluded one night last week, finished, and then the sole focus thereafter would be — as it should be — on identifying and bringing to justice the few true insurrectionists and provocateurs who came to Washington on January 6 with secretly evil intent, possibly with lethal weapons, people who physically battered and destroyed federal government property and who fought brave first responders handicapped by serving under incompetent upper brass. Those criminals destroyed a day that, in many ways, could have been one of the finest moments in American history: a day when tens of thousands had come from all over the United States to their nation’s capital to voice their grievances lawfully and peacefully while their duly elected representatives across the street were observing and taking note of their petition and respectfully debating the subject matter that has brought so much pain to the 70 percent of Republicans, 26 percent of Independents, and between 10 and 30 percent of Democrats who believe, rightly or wrongly, that the 2020 presidential election was stolen.