Can Trump Be Prosecuted for Inciting the Capitol Riot?

walk down Pennsylvania Avenue. I love Pennsylvania Avenue, and we're going to the Capitol because you'll never take back our country with weakness. You have to show strength, and you have to be strong. Can Trump be prosecuted for that inflammatory speech urging the crowd to go to the capital and demand legislator's address his baseless claims of voter fraud?

Joining me as Sharene SNAr, a professor at for the Law School who studies the legal treatment of political violence, Let's start with the broad question first, Can President Trump be prosecuted for inciting the riot? So the standard for

incitement is a high standard under criminal law. And you know the first thing I would say is that we should separate out the criminal prosecution question from the question of whether he incited the riot in a broader moral or political sense, or even in terms of the impeachment proceedings against him, but in terms of a criminal prosecution, because of a nine Supreme Court decision in a case called Brandenburg the Ohio, the standard for prosecuting somebody for

advocacy of violence is high. You have to show both that their speech was intended to produce imminent lawless action and that it was likely to produce that kind of action. So there are questions about whether what the president said in the context in which he said it could meet that standard. So could a case be made out here? I think there's a case to be made, in part not just from the words, but also from the context in which he made the comments that he did at

the rally immediately proceeding the invasion of the capital. And so it's not just the language is taking back our country strings and so forth, but also the fact that the crowd that he was speaking to were shouting fight for Trump, Fight for Trump at the time. But it

will also rest on facts we don't fully know right now. So, for instance, the more it can be shown that the president had knowledge that groups were planning of an invasion of the capital in the days before the attack, or you know that they were already groups like the Proud Boys in DC they're fighting with police on the eve of the attacks, then it could strengthen the case that

he intended violence to result from his remarks. In investigation, a grand jury could subpoena internal White House documents and even question White House aids to find out what Trump said or new prior to the riot. Would that help

determine his intent? If it emerges from that that he had a strong knowledge of the plans of certain groups that we're coming to d C to be part of the protest, then that can help show that what he intended by, you know, asking followers to fight for him and to be strong, you know, with more than just people protests. How likely is it that a president or a former president, because we assume that this is going to be handled by the Justice Department under Joe Biden,

that a former president would be prosecuted. That's hard to say because it is the unprecedented. But so much of what we are seeing now is is unprecedented, and there's not a pattern or historical example. I mean, recent times that we can draw, and so I think I'd rather not speculate about the likelihood of prosecution. Some of it turns on the decision making by his attorneys and turns on the political context. So there's a lot that could

go into that kind of decision. Could some of the other speakers at the rally be prosecuted, for example, Rudy Giuliani, Trump's personal attorney, let's have trial by combat. So the words of Giuliani that really stand out are the reference to trial by combat. He can still argue that what he meant by that, and in the context of the sentence,

it's actually not entirely clear. He could argue that that was not a reference to literal physical combat, um, but a reference to combat in the same way that we often use the word fight to mean a struggle. You know, combat certainly does have a more militaristic connotation even than than fight. But there is a defense there that the intent was not literally in citing people to break down the doors of the capital. What did that charges of

seditious conspiracy. Seditious conspiracy requires people agreeing either to overthrow the government or opposed federal authority by force, including preventing the execution of federal law. And so the argument I suppose would be that if the president agreed to use force to prevent a certification of the Electoral College votes, that would amount to interrupting a lawful federal process in

terms of the statute. But you would have to show more than the fact that the president wanted the certification not to happen. You would have to show some agreement with others to impede that process through force. And so again, it's not just engaging in a series of actions to be legitimize the election, or even to invite right wing support right wing militants, but specifically to prevent a certification through force. So seditious conspiracy that might be a charge

that's better suited to the rioters themselves. I think certainly the conduct of some of the rioters um falls within that description. But I also think we need to be

careful of using seditious conspiracy charges. And um that's because we do have a long history of using sedition laws to suppress descent descent, and while the people who invaded a capital were not engaging in merely peaceful protests, we should be careful about normalizing a framework UM that is connected to the suppression of ideas and that um is likely to uh to perhaps have its strongest effect on

on others. And you know, I would note in that context that it was just a few months back that the Attorney General was suggesting using sedition conspiracy charges against people in the police protests. UM. And you know, in the past, the successful uses of that charge have been

against Puerto Rican nationalist, radical anarchists, Muslims. The government has tried to use that charge against white supremacists and at least a couple of high profile cases over the past thirty forty years UM, but UH, multiple prosecutions ended in dismissal of charges or acquittal. UM. So we do need to be careful about the the longer term and more systemic consequences of any expanded use of position charges. That

brings me to the question of of domestic terrorism. And many people are saying, well, the FBI couldn't investigate here because they can investigate for domestic terrorism unless the case has been opened. So I think there's some misinformation about the scope of federal authority of including to to launch investigations and the FBI guideline for investigations, which is Essentially, the UM you know, the closest thing to a charter or framework for for their authority, UH, has a fairly

low standard when it comes to initiating investigations UM. In the context of of speech. UM. So, for instance, the FBI can open an assessment into potential illegal activity without having to show any particular factual basis for suspicions. So, and that's assessment. That's a form of investigative authority that allows the FBI to look at social media posts and

even send out informants um to to target particular individuals. UM. So that's the set of powers that is available to the FBI, even in the absence of a specific factual basis a predication we're thinking that an individual is about to engage in or in violence um. And Similarly, there is a restriction UM in the sense that the FBI is not supposed to engage investigations solely on account of speech. But the way that the FBI interprets that is it's not solely on account of speech if there is a

concern that a group is interested in violence. So that UH, you know, those investigative authorities are already quite broad, and the lack of a domestic terrorism Uh, you know, process for designating organizations, you know as domestic charish organizations is not an impediment to that already very large authority. So is there a difference between the act itself, what we saw that he did, and whether or not the proof

of intent is there? Yeah, Well, I think it's one thing to say that the president bears moral and political responsibility for instigating the violence. There's no question in my mind that the comments made not just at the day of the rally, but in the preceding months, and you know, for that matter, the entire campaign of delegitimizing the election. Um that the president bears responsibility for what unfolded. But that's a separate question from whether the intent required by this,

you know, the constitutional tests of it isn't. The Senator Dick Durbin plans to reintroduce a domestic terrorism bill after the inauguration. Tell me what your opinion is of the need for domestic terrorism bill. I think if there's legislation that is intended to increase awareness and information as to how the government has responded domestic terrorism. So some of the bills are primarily about understanding the law enforcement response

for example, UM. And so that's that's one thing. But if the bill is intended, and some of the bills, new domestic terrorism bills that have been introduced over the last year so are intended to create a new, broad, federal domestic terrorism criminal charge. And my view of that is both that the charge wouldn't be necessary because there are numerous uh criminal charges that can already be brought to prosecute domestic terrorism, but also that creating a new

charge UM has problems. And you know, again the context here is that terrorism and security laws have you've been used most vigorously against people of color and those who challenge the prevailing racial and socio economic order. So you might think you're aiming at white supremacists by creating a new charge, UM, But that same charge ends up then being deployed against folks protesting police brutality, or indigenous protesters responding to oil pipeline in their communities and and things

of that sort. So there's a danger in creating broad new terrorism charges. And if that's the nature of a domestic terrorism proposal, that's problematics. Do you think that the investigations into domestic terrorism since nine eleven to date, do you think a lot of them have gone too far or gone astray. Well, they're two separate but related issues.

So on the one hand, the FBI has not sufficiently prioritized investigations into white supremacists violence, and not just the FBI, but the security agencies more broadly failed to consider it a threat for a very long time, you know, when they sort of relatedly recognized it as a threat. Um, you know, as after years of some of these organizations UM already um, you know, working for many it's kind of below the radar. So there's been on the one hand,

of failure to prioritize white supremacists violence. You know. On the other hand, we've seen that even with respect to domestic groups that have absolutely no international time UM, there

have been concerns about intrusive FBI investigations. So in two thousands ten, the Justice Department Inspector General, which is a watchdog agency within the Department UH published a review where it looked at UH FBI investigations of anti war groups, of animals rights, environmental organizations, and other groups on the left, and it found that in some of those investigations there has been a very very thin basis for launching the investigation,

and that those investigations continued, um, even when it became apparent that people were not planning any um, you know, anything illegal. Um. So there's good reason to be concerned about investigations. And and I don't think that that that's

concerned uh to segregate domestic from international terrorism. In other words, Uh, the FBI's investigations have been broad, um and concerning with respect both too uh perceived Muslim threats as well as with respect to various left wings um you know stories. You know, the FBI you know investigative report on black identity extremists um from a couple of years ago being kind of one example of the very broad framing of protests and descent when it comes from say, racial sources protesters,

um uh the you know. But on the other hand, those concerns are paired with a concern that the FBI hasn't provided sufficient attention into white supremacists, which they now be lately recognized as the most significant threats domestically. Thanks

for being on the Bloomberg Law Show. That's Sharene SNAr, professor at stamp In Law School who studies the legal treatment of political violence, even Before last week's violence at the Capitol, lawmakers and civil rights advocates had been pressuring social media platforms to crack down on posts that encourage violence or hatred. While regulators in Europe have passed laws finding companies that failed to act on hate speech, the

US has largely left regulation to the companies. After the violence, Twitter suspended President Trump's account permanently due to the quote risk of further incitement of violence. Facebook and Instagram, which it owns, has suspended Trump until at least the January twenty inauguration of President elect Joe Biden, arguing that Trump intended to use his time left in office to undermine the peaceful transition of power. Joining me is Snanaorall, a professor at m I T and director of the m

I T Initiative on the Digital Economy. His new book is called The Hype Machine. What did social media tell you about the Capital riots? Before last when day? Well, there was a lot of chatter on social media about you know, meeting for a march, about storming the Capitol. There was a lot of q and on chatter about taking the capital, about fighting. You know, a lot of it is done in the form of allusion you alluding

to violence. Sometimes it's quite explicit. Uh, there was a lot of violent chatter on parlor Um and even on other more mainstream social media. There was there were clear indications. Did the authorities just miss it or did they misinterpret it?

It's a very good question. I think the question as to why the FBI, the Capitol Police, Homeland Security and so on, we're not more prepared on Wednesday is a very important open question because I think that uh, you know, all of the signs were there in all of the known channels, and it would be it's very hard for me to believe that it was just missed, uh for

some reason. There now appears to be some reports that the FBI did issue some warnings before the attack, right, So so it's hard for me to understand where the communication failure happened. Because there's also reports that the d D and other authorities in the National Guard offered assistance

and it was declined multiple times. The information assistance in terms of saying, hey, we're seeing chatter, uh, you should be more prepared, and or the actual physical um, you know, assistance of of you know, more personnel, how that was lost in the channing communication. I don't know, but I think a full investigation is warranted because given the amount of chatter in advance, it was surprising to see the

Capitol not prepared for what happened on Wednesday. Now we're getting a lot of warnings about what might happen on inauguration Day. What are you seeing now on social media? Well, I think that there are ample warnings that continue that things may happen on the on the and on the twentie and I would be very surprised if the inauguration

we're not more prepared than the Capitol on Wednesday. Um, there is no excuse for not being prepared on inauguration Day and in fact in the next several days leading up to the inauguration. Given the amount of attention that has been brought to this, and given the amount of conversation that happens on social media about about this, I

should add that there's also talk of additional uh. I guess you could call them threats against state capitals, and so this isn't limited to Washington, d C. But needs to be taken seriously across the country. Is it one group, is it a lot of groups? I mean, how many actors are there here? Well, I think that it's it's difficult to say. There are a lot of bill defined groups and or people who are unaffiliated that are privy

to information that are being put out by groups. I think one group that obviously comes to mind is q and on. Obviously has been banned by Facebook, and Facebook started cleaning out to and on content prior even to the election, but they continue to have a voice on parlor and in other places. Before Parlor was a home for this kind of communications, four chan and eight chan were channels where you could find this type of content.

So q and on is one loosely organized group UM that is not really a formal organization so much as a set of ideals and ideas that are spread on social media and elsewhere that have um gained a lot of traction in recent years. You've written that false news travels farther and faster and more broadly than the truth online.

Explain what you mean by that. Yeah, So, we published a ten year study on the cover of Science magazine in March that studied all of the true and false verified news stories that had ever spread on Twitter in those ten years, and what we found was that the false news traveled farther, faster, deeper, and more broadly than the truth in every category of information that we studied,

and that false political news was especially viral. And so that presents an important challenge because false narratives can create false beliefs and people can act on those false beliefs uh and debunking of that falsity rarely catches up to

the lie. And therefore, if you have false narratives, for instance, around election integrity or fraud during the election, uh, and if you use those narratives to convince people that the election was stolen and that they must quote unquote fight, that that can really rile people up and create the types of outcomes that we saw on Wednesday. Why does the false news travel so fast and is accepted so readily?

So we had a number of hypotheses. At first, we thought that, well, maybe false news spreaders have more followers, or maybe they follow more people, or maybe there are more often verified accounts, or they've been on Twitter longer, etcetera. And we checked each one of these in turn, and the opposite was true. False news spreaters have fewer followers followed, fewer people, have been on Twitter for less time. Or less often verified and so on, and so we had

to come up with other explanations. And what we looked at was the emotional content and the novelty of the information. And what we found was that false news is shocking, it's novel. And when you read the cognitive science literature, you find that human attention is drawn to novelty things that are new in the environment because that's what's going to update our beliefs about the state of the world.

And when you read the sociology literature, what you find is that we gain in status when we share novel information because we're seen as being in the know or having access to inside information quote unquote, and so we tend to have And when we look that the emotions, we found that the false news was blood boiling, it was anger inducing, it was shocking, it was disgusting, stallacious, and that gets our attention and then we feel the knee jerk urge to share it, and that's what drives

false news to be uh more viral. That's so interesting the social media platforms, what are they doing, if anything, to stop the false narratives? Well, I mean, I think that you can see that in the last six months they have stepped up their efforts to address the spread of information. A year ago or so, Mark Zuckerberg gave a speech in sort of Georgetown at elector and he said, we don't want to be the arbiters of truth. We don't want to have any uh, you know, sort of

role in that. But I think the pressure mounted and uh in the last six months or so leading up to the election, the social media platform began moderating content a lot more proactively and aggressively, and they implemented several different policies, including, for instance, Twitter forcing you to quote tweet instead of retweet without thinking, nudging you to read the article before you retweet it, m de emphasizing false

misinformation public health misinformation in search results, demonetizing fake news on WhatsApp. Facebook limited the number of reshares of any type of information to try and blow all information down. First, they limited to five than one reshares. And so now what you see is them taking even more visible actions, which culminated in the banning of Donald Trump's account by uh not just Facebook and Twitter, but also Pinterest, snapchat,

um and other places. And so it's sort of boiled to come to a head now I think I should point out that when Twitter band Donald Trump's account, UH, they used to tweets as a justification which were frankly, much more innocuous than the content he had put out beforehand, and because Twitter's policy was reactive instead of proactive, they were caught off guard banning the account on what some might argue was innocuous grounds. And so that provides UH

fodder for the argument that this is censorship. Is absurd that you would ban on an account on these two tweets. But their argument is that in the content, in the broader context of all the content, the repeated misinformation, the repeated calls to violence, um, and UH incendiary content, that's

the justification for the band. I think now what we have to be careful about is what has been termed the Splinternet, the sort of tearing a part of our human social network into different factions, where conservatives go to parlor and you know, liberals maybe go to other social networks.

After the band, what you saw was Trump allies condemning the band and then saying, like for instance, Mark Levine rush Limbaugh Um, what some might call fringe conservatives who have a large following, saying I'm voluntarily suspending my account on Twitter, follow me on Parlor and rumble and let's

have the conversation there. Uh. And so we have to be very careful about this splintering of our civil society because any student of negotiation knows that in order to achieve collaboration, cooperation, and even empathy, you have to have common ground. And if we split into these factions with different sets of information, uh, they're seeing completely different narratives and never talk think to each other, that empathy is hard to achieve. There was action taken against Parlor. Is

that going to stop it being means of communication? I don't think so. So, you know, Amazon removed it from its hosting services. As soon as that happened, people said, oh, this is big tech, uh, controlling the Internet. And I predicted that they would get a new hosting service than they did. So they announced today that they've gotten a new hosting service, so they really weren't disrupted for that long. There's they're always going to be um, you know, hosting

services that are willing to host services like Parlor. I think more dangerous than the shutting down of of Parlor is the bifurcation of civil society into completely unconnected UH factions. If you want to try to stop you know, these kinds of violent communications, and yet you don't want to bifurcate the communication lines. What you to do? Well? I think there are a number of things that we need

to be doing. And by the way, you know, I write extensively in my book about how we UH sort of move forward to achieve the promise of social media and avoid the peril. There are so many important conversations that we need to be having about antitrust, federal privacy, legislation, election integrity, the spread of misinformation, UH and so on, all of which you know, I think are important parts

of this conversation. But I think two things in particular relate to your specific question, And the first is that the platforms need to create UH comprehensive, systematic and transparent content moderation policies. So far, they've been quite reactive. I'll just point to the Hunter Biden email scandal and how Twitter handled that. They first they banned it, then they allowed it, then they changed their rules in order to

justify the specific decisions that they had made. That's completely backwards. What the platforms need to do is to write down very specific, detailed, comprehensive and transparent content moderation policies UH, and they need to consult experts in writing those policies so that they can have a debate about the policies rather than the specific decisions on a given account or a given tweet or posts. UM. Secondly, I think that this UH magnifies to a great degree the need for

interoperability between the networks. I argue very strongly for this in my book. And what I mean is that you take the anti trust case against Facebook. The argument there is that Facebook is a monopoly and we should break them up. But the social media economy runs on network effects, which means that the value of a platform is a function of the number of users that has and economies that run on network of facts tend toward market concentration.

So if you break up the market leader, you're just going to tip the next Facebook like company into into market dominance. But what could achieve competition in the social media economy is UH interoperability and social network portability. So UH, when a o L merged with Time Warner, what we did was we required a o l's instant messenger to become interoperable with Yahoo Messenger and MSN Messenger and accept

messages going across. That made their market share go down from six to fifty and then they seeded the entire market to New Entrance three years later. And interoperability therefore would help create competition in the social media economy, but it would also help stitch the networks together in a way that you could send messages from one network to

another so they weren't completely bifurcated. So in this way, interoperability could not only help create structural reforms that create the competition we want to see in the social media economy, but they could also help mend the networks so that we remain connected in a world where people want to choose different services thanks to Non that's a Non, a royal professor at m I T. His book is called The Hype Machine. And that's it for the sedition of

the Bloomberg Laws Show. I'm June Grosso and you're listening to Bloomberg