A year has passed since Pro-Trump protestors attacked the U.S. Capitol on January 6th, 2o21. So, one year later, what has resulted from that dark day in 2021? And what progress have we made?
On Lawyer 2 Lawyer, host Craig Williams is joined by Gregory P. Magarian, professor of law at Washington University School of Law in St. Louis, to reflect on the January 6th Capitol insurrection. Craig and Greg will take a look at the investigation by the January 6th committee, the impact of the insurrection, the people involved, and where we go from here.
Gregory P. Magarian: So, I think it is fair to say that yeah, Trump had sort of built a rhetorical platform for sedition and then at that moment on January 6, said, “Okay, go vindicate my argument” that the election has been stolen and that leads to the assault on the capital.”
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Well, a year has passed since pro-Trump protesters attacked the US Capitol on January 6. On that day, we were recording an episode of Lawyer 2 Lawyer called “Defining Sedition Under the Trump Presidency” with guest Carlton Larson. From my introduction that day, I said “Today, Wednesday, January 6, 2021, as congress meets to certify the presidential election results, a number of Republican members from the House and Senate are challenging the Electoral College results in four states. And now, pro-Trump protesters have stormed the US Capitol and the building is currently on lockdown as lawmakers were in the process of certifying Electoral College votes in favor of president-elect, Biden.
Who knew a year later what will have resulted from that dark day in 2021? What progress have we made if any today? Well today on Lawyer 2 Lawyer as we record this on January 6, 2022 a year later, we will reflect on the January 6, 2021 Capital Insurrection. We’ll take a look at the investigation by the January 6 committee, the impact of the insurrection, the people involved and where we go from here. And to do that, we’re joined by Gregory P. Magarian, the Thomas and Karole Green professor of law at Washington University School of Law in St. Louis. Greg teaches and writes about U.S. Constitutional Law with emphasis on the freedom of expression. His first book, Managed Speech: The Roberts Court’s First Amendment, was published in 2017 by Oxford University Press. His work also examines church and state, firearms regulation, and regulations of the political process. No wonder Greg’s on the show today. Well, welcome to the show Greg.
Gregory P. Magarian: Thank you very much for having me.
J. Craig Williams: Wow, there is an awful lot to unpack here, January 6, 2020. I’m going to call it an “Insurrection.” What do you call it?
Gregory P. Magarian: I think that’s perfectly at-term. That’s what it was.
J. Craig Williams: Well, you’re a First Amendment specialist and kind of one of the obvious questions that has to be asked here about the election is, is there a First Amendment right to lie?
Gregory P. Magarian: That’s a very complicated question as is it turns out. The short answer is yes, the Supreme Court has generally held that the government can’t ban lying just as an abstract matter. Now, there are certain kinds of lies that can be and are criminalized; fraud is the most obvious example of that. So, as sort of a basic through-line if a lie has a material consequence, that deprives someone or defraud someone of something, then the First Amendment doesn’t prohibit the government from restricting it. But we have a long history, everybody knows this in even more ordinary, political times of people, on various sides of political issues, stretching the truth, making misrepresentations. And generally speaking, First Amendment law has tried to create space for that. But the problem we’re facing now and sort of mass disinformation and misinformation on a worldwide technologically adrenalized scale is clearly a new kind of problem.
J. Craig Williams: And the First Amendment stretches to political expression and the quintessential example is that you have — you cannot yell fire in a crowded theater.
Gregory P. Magarian: Yes. Absolutely.
J. Craig Williams: And how is it then that Trump can stand up and say, “you’ve got a fight like hell with a capital, not far away.” And everybody there for that purpose, and that not be yelling “fire” in a somewhat crowded theater?
Gregory P. Magarian: It’s a great question and so I’m going to give you just a little bit of inside baseball stuff here from First Amendment Law. This is one of the cornerstone problems of free speech law and a word that people have probably heard a lot arguably describing what Trump did last January 6 is incitement. So axiomatically, the First Amendment protects advocacy, even of illegal conduct.
It would be good if people did this unlawful thing, but the First Amendment does not protect incitement actually causing or inspiring people to do the unlawful thing. Because we care about free speech, the legal doctrine of incitement, the doctrine that allows punishment of incitement notwithstanding the First Amendment is a narrow doctrine. That’s where that sort of fire in a crowded movie theater meme(ph) always comes into play. That’s a fairly unusual thing. People aren’t often going around yelling fire in a crowded movie theater, as I sometimes like to say, yelling movie in a crowded fire station.
So, the question — a question, one of the legal questions coming out of January 6 was, did Trump’s exhortations rise to the level of incitement? And it’s almost like the hole in the needle that you have to drive the camel through to find something that’s true incitement. But there’s a really good argument that what Trump did on January satisfies that definition. I mean, it’s just as you were saying, he’s got an amped-up crowd, proximate in space to the capital, you know, “Go over there, March over there and do this”. He didn’t literally say, go kill people, go do violent things, and that’s the best argument that what Trump did wasn’t incitement. But the idea that he did exhort people to begin the conduct that predictably or inevitably led to the violence, that’s also a very strong argument, in my view a compelling argument.
J. Craig Williams: And then let’s look at what he incited. Did he incite sedition?
Gregory P. Magarian: So, this is where it gets even more complicated. With incitement, the focus is always on the immediate proximate in time exhortation, so Trump yells at the angry crowd. The thing that really seems to have undergirded the seditious aspect of this has a lot to do more with what was being said in the days leading up with Trump and his supporters were saying, in the days leading up to the insurrection. The election was stolen, there was massive voter fraud, all of these misinformation statements that Trump was pedaling and his advocates were peddling about what happened in the election. So, to get to the seditious aspect of what was going on, you obviously need to understand some of the context but that context was present, that context was already in place on January 6 when Trump addressed the crowd. Clearly, the basis, the whole subject of the speech and of the rally and of everything that was happening that day had to do with certification of the election results of what was going on over at the Capitol. So, I think it is fair to say that yeah, Trump had sort of built a rhetorical platform for sedition. And then at that moment on January 6, said, “Okay. Go vindicate my argument that the election has been stolen” and that leads to the assault on the capital directly.
J. Craig Williams: Right and it wasn’t just Trump. It was a long line, I mean, John Eastman who has been on this show as guest was one of the people — had put out the memo about how to go about doing this was at the top levels encouraging Trump to do this. What role does Eastman have in this whole thing? And what the consequences are going to flow from his involvement?
Gregory P. Magarian: Something I have to confess here is that there is some relevant law here I think that I don’t fully know. And part of the problem with all of this of course is nobody ever anticipated any of this stuff, and to some extent, even the background law doesn’t give us a full basis for working through all of this. It’s not like there’s a section in the legal section in the legal treatise on my shelf about what happens when the president’s henchmen try to rig or undermine a national election.
J. Craig Williams: Yeah, I mean Watergate maybe and maybe back to John Adams and the Constitutional findings(ph).
Gregory P. Magarian: That’s exactly the kind of thinking. Yeah, like we’ve got some lessons from experience but through our history, I mean one of the things that makes January 6 so important is that this is distinctive. I don’t think it’s entirely isolated, I don’t think it’s entirely detached from other things that have been happening in our politics and our political discourse. But we certainly haven’t had a situation exactly like this.
Yeah, Watergate is a close parallel but even there, the unlawful activity while it was focused on the election was leading up to the election. I mean, one of the many ironies of Watergate of course is that Nixon himself winning that 72 election in an unprecedented Landslide and the idea that he and his stooges engaged in all manner of criminal conduct to try to ensure his re-election seems laughable in retrospect but that’s what was going on.
All right, so talking about Eastman, Eastman didn’t incite like, that much is clear. He wasn’t there, sort of prodding the crowd directly. Giuliani, some of the others who spoke maybe so. But Eastman and others in the White House and others of Trump supporters were involved in this broader contextual process of building a false case against the legitimacy of the election. Legally and this is where we get back to my kind of caveat. I don’t know exactly what you do with that. I mean, it’s the kind of thing that should — I think we usually deal with it normatively, you know? We usually have a public discourse that says “My God, John Eastman was out there arguing that there are legitimate ways to essentially overturn the democratic will of the people and that guy should never have a public platform again.” No reasonable respectable person should ever take seriously a word that John Eastman says for the rest of his life. I think that’s how we deal with those sorts of really boundary-pushing behaviors matters of political wrongdoing.
J. Craig Williams: Social ostracism. We ban him from society. We kick him out.
Gregory P. Magarian: Yeah, essentially. I mean, taking a swing in respect to First Amendment law for me because that’s what I intend to do. First Amendment Law Leaves a lot of bad socially harmful speech protected from direct governmental punishment or restriction. I mean that’s just a reality of what our legal commitment to free speech does. That doesn’t mean and that has never meant that we are just sanguine as a society as a political community about socially destructive, harmful speech. Oh, you know, socially destructive harmful speech is fine, nobody says that. What we say is “We’re not going to deal with it through law,” but the implication is we’re going to deal with it in other ways. The First Amendment protects the expression of the most extreme, Nazi ideas, Nazis in Skokie is the classic example, but nobody’s saying the Nazis in Skokie are a good thing. What we do with the Nazis in Skokie, as we say, “Okay, you guys aren’t going to jail for marching through Skokie with a swastika, but we are going to build a consensus. Hopefully, as a society that your ideas are noxious and don’t deserve any kind of respectable hearing and we are going to push you to the social and political and cultural fringes.”
J. Craig Williams: Should we be taking the step like Germany did? Banning Nazi symbols? Should we ban the Confederate flag? I mean, that’s over 157 years ago.
Gregory P. Magarian: I think the best argument against taking that step is that it’s likely to be counterproductive. So, even if you accept the premise, and I’ll certainly accept the normative premise that no good can come from public display of the Confederate flag. The Confederate flag is a symbol of evil. Even in the political discourse around that subject that we’ve had over the past 10 years, especially where it’s been a matter of “Okay, should we just decide to take down Confederate flags?” Boy, every time you suggest something like that, the sons of the Confederate veterans just rile up their supporters and they are being oppressed and they’re being — their great heritage is being whatever. And so, if you say okay, “We’re going make this a matter of law,” then it just sharpens, it gives them a different kind of argument to make that. “Oh, we really are being punished by the government simply for believing something outside the mainstream.” More people start to sympathize not with the underlying Confederate politics, but with the idea that this is undesirable, repression of speech. So that leaves us in a position saying again, “Okay, we’re not going to use coercive law to restrict private display of the Confederate flag. What we’re going to do is have the conversation and state loudly, and clearly and as many times as we need to state it why the Confederate flag is a symbol of evil.
I think you see this working to some extent like I think we’re in this weird situation where like the mainstream of public discourse, over the past 10, 20 years has definitely shifted away from the idea that the Confederate flag is somehow respectable or acceptable. But there’s also been a Hardening of a core of people on the other side who are doubling down on the Confederate flag. And that’s the scenario that we’re having to deal with.
J. Craig Williams: Let’s talk about another aspect of the First Amendment, your expert in separation of church and state, the involvement of religion in the United States. I’ve kind of come up with the theory that there was a bit of a blind devotion to President Trump in accepting his statements without any proof of evidence.
Almost like you see some fundamental religious groups, maybe cult level, but certainly I’m not sure you can attach it to Christians or any one group level but there has been this kind of blind devotion, “I’m just following orders.” These people showing up is what role his religion played in this whole American terrorism is really all I can call it.
Gregory P. Magarian: You know, it’s interesting. The connection you’re making, I think is very sound and I think there’s even a little bit more of a literal level to this. I’ve read and sure you have different media reports over particularly the Trump Administration years. The big question a lot of people are asking is okay, you know, we got these Christians, Fundamentalists Christians, Evangelical Christians who are scrupulously moral and espouse certain forms of moral conduct that Trump personally violates over and over again. I mean, the comments about women and advocacy and behavior toward women. The fact that Trump himself can’t be taken seriously as any kind of religious person. And so, people are asking these Evangelical Christian supporters of Trump, “How do you reconcile this?” And the answer that I’ve seen over and over again, is people making a very sort of calculated judgment. We know this guy is a person of low personal morality, but we need him to accomplish our goals.
And so, that reasoning kind of conflates the religious views and commitments that that lead these folks that were talking about to form their policy goals, ending abortion, opposing gay marriage, whatever it might be. So, they kind of conflate that religious devotion with a practical instrumental Devotion to Trump as a vehicle for getting what they want. And at that point, you’ve got a convergence and I think a very potent convergence because they’re looking past their own moral precepts and commitments to say, “Essentially, we’re putting our faith in this guy to get the stuff that we want to get the policy outcomes that we want even though he’s a bad guy.” That’s a potent, powerful kind of political commitment.
J. Craig Williams: It’s a huge sacrifice of one set of beliefs for another set of beliefs that almost makes it — I would say hypocritical.
Gregory P. Magarian: Yeah. I think very much so and I’m not of that faith but I’m comfortable signing onto your prescription of hypocrisy. largely because you also saw plenty of other religiously conservative Evangelical Christians in the Trump years. Expressing a lot of really principled opposition and anguish about this saying, “Okay, we can’t do,” this for a variety of reasons grounded in religiosity, the reason that the guy, Trump himself is morally noxious as a human being. For some people, the idea that, “Okay, I’m a conservative but some of these policies that this this guy is advocating, family separation being really vivid one, are just appalling to my faith to my beliefs.” So, I think there are plenty of people within that broadly-defined religious compliment and community who called out that hypocrisy themselves. Who said this is a deal with the devil that we absolutely should not be making?
J. Craig Williams: Yeah, you sell yourself down the river perhaps.
Gregory P. Magarian: Yeah.
J. Craig Williams: Let’s talk about a different aspect of freedom of speech. Let’s talk about the role of journalists. It has just come out that Sean Hannity from Fox News. Can we call it “news” since they say, it’s not?
Gregory P. Magarian: Either with implied air quotes around —
J. Craig Williams: There we are, Fox News. Sean Hannity has been texting the President, pretty directly and encouraging particular behavior. Where does this fall on the spectrum in freedom of speech? And then how does it cross into journalistic ethics?
Gregory P. Magarian: Wow, that’s a big can of worms. One thing that’s come up, I think Hannity’s lawyers, the other side of the Congressional Committee is issuing subpoenas to some of these journalists who were communicating with Trump and they’re saying, “Well, that’s a violation of the freedom of the press.” It isn’t, I mean if you’re acting — this is almost a little bit like the Andrew Cuomo — Chris Cuomo situation. Like if you are a journalist but you are acting as essentially an advisor to an office holder, you’re not acting in your journalistic capacity when you do that. With Sean Hannity, you know, texts the White House and says for God’s sake, “call off your dogs,” whatever else we might say about Sean Hannity’s journalistic profile, that’s not Sean Hannity the journalist, that’s Sean Hannity the person and the confidant of Trump.
So, the legal argument that somehow, he should be in others — in Fox News who did similar things should be protected from inquiry by the freedom of the press, I think is a complete smokescreen. I think the journalistic ethics question is a huge one. I mean, again, we’re starting from a sort of basic understanding of Fox News as an institution. A lot of people have left Fox News for precisely this reason. Respectable journalists sort of leaving and drove saying this isn’t news, this is — advocacy. Yeah, it’s entertainment at its most benign and it’s a kind of noxious pandering political advocacy in its essence. I think for some of these folks to be privately exhorting the president, demonstrating that they know how bad this is. That they know that mobs running roughshod over the capital is beyond the pale and then turning around in their sort of journalistic capacity to their audiences and saying “Oh, this is false flag operation” or “this is being overblown” or “This is a partisan democratic witch hunt” or whatever, talk about hypocrisy and that’s just appalling. The classic Fox playbook of let’s give the people what they want. We report, you decide, is that their old slogan? Basically, we pander, you eat it up I think is the reality. It’s disgusting and when the stakes are as high as they are around the events of January 6, it’s particularly atrocious.
J. Craig Williams: Let’s talk about the investigation and Congress has kind of slowly appears to have started its investigation into this. Some things have come out, there have been a lot of pronouncements. We’ve got Merrick Garland is saying that he’s going to hold people accountable up to the highest levels. This kind of thing, there’s been a lot of discussion where people have said that this whole insurrection has shaken democracy to its core and said, “Democracy isn’t going to survive because of it.” To me, it doesn’t seem much different than what happened after the Civil War.
Gregory P. Magarian: Say more about that. I want to be sure that I know where you’re going.
J. Craig Williams: Well, you have the government saying “We’re going to hold people accountable.” You have the whole situation where we have Americans fighting Americans like we did in the Civil War. It wasn’t really a foreign invasion, it’s not like 9/11. It’s not like Pearl Harbor. It has huge differences, it was internal, it’s not much different than Civil War where northerners were fighting southerners. We’re now in that aftermath, it’s after 1865, the Civil War is over. We are trying to deal with — we’re sentencing people left and right; 170 people have been arrested, 70 have been sentenced so far. To me, a fairly minor sentence. How is democracy going to survive this? Can we treat this like we did in the Civil War and survive that democracy? Just fighting one against the other, are we going to make it through this?
Gregory P. Magarian: That’s the ultimate question and as you’re talking, one thing that sort of occurs to me is if we’re lucky. If we come out of this with the best possible result then we’re talking about the situation at the end of the Civil War. The really scary possibility is that what we saw in January 6 was more like happened — more like, what was happening in the lead up to the Civil War where you have clashes, and people sometimes violent, sometimes just rhetoric pushing the political envelope and seeing what the response is going to be. And the response basically is, to a substantial extent, “Okay. A lot of institutions are going to try to appease these people and the people who are pushing the envelope, the insurrectionists to be — see that the response is appeasement and they push further and they push further.
I’m going to say something a little bit counterintuitive, if all we were talking about was what happened on, January 6 for democracy to survive that day and the events of that day is easy. By the standards of events throughout human history that have undermined or damaged democracies. What happened on January 6, not to in any way downplay the injuries and loss of life, especially among the police officers, law enforcement who were trying to hold the ground and then stopped things from getting worse. That’s obviously terrible stuff but the actual extent and degree of the violence on January 6th is relatively minor in the cosmic scheme of things.
What we may not be able to survive is our — and I think this is going to what you were saying is the degree of timidity and apathy, and push back that has characterized a lot of the response. You know, Congress is trying to do what it can.
Law enforcement, I mean, I think there are some good people working hard on this but, you know, again this kind of goes back to what we’re saying about Eastman. How can John Eastman walk down the street with his head up after what he did? How can Donald Trump still command the allegiance of the overwhelming majority of Republicans in this country, after what he did? How can members of Congress who were themselves put at physical risk and saw their aides and staff members put at physical risk on that day vote against impeachment and conviction after impeachment? How can they downplay what was done? This is the scary stuff. I mean, you know on January 6 you could sit there — yeah, a year ago today. Today, you could sit there and say “Okay, this is beyond the pale but as long as we recognize that it’s beyond the pale. As long as we respond collectively in a way that acknowledges how serious this is, we’ll be fine.” but that’s not what’s happened.
There’s so much in what you said, just going back to the idea of the end of the Civil War. I said, that’s maybe the best-case scenario. That’s pretty depressing if that’s the best-case scenario because of course what happens after the Civil War is that a whole bunch of people are particularly African-Americans are left out to dry by the government essentially saying, “Okay, we have to coexist. So, we’re going to coexist with very bad people, doing very bad things and good luck African-Americans in the South. I hope you enjoyed your moment of political enfranchisement while you have it because you’re not getting that back for another hundred years.”
And obviously, we’re talking about an analogy, the political dynamics in this era and situation of different. Although when you look underneath what happened last January 6, a lot of it has to do with racial resentment. So, in some ways, the parallel is even more uncomfortably spot-on than you’d like to think.
J. Craig Williams: Well Greg, it looks like we’ve just about reached the end of the program. So, I’d like to take the opportunity to invite Professor Gregory Magarian to give us his final thoughts. But I have a question and that question is pretty much how you — I know I’m summarizing I think what you just said in a very short sentence. Are we at the beginning of the insurrection or are we at the end?
Gregory P. Magarian: No one knows for sure and especially I think it’s hard to say whether what we’re going to see is a real uptick in widespread political violence. I was reading different things this morning and some people sort of saying “We’re not seeing political violence,” partially because of the pandemic. But we are seeing is just increased radicalization of a lot more people who are willing to endorse and accept what happened on January 6?
I don’t know exactly what channel that bad energy flows into from this day forward. But whatever it is, it’s not going to be good. I think we could hope that it’s not going to be actual violence that we’re not going to see a body count mount as a result of this. But what happens this year when inevitably, the president’s party loses seats in the midterms. What happens when a congress run by Trump acolytes who are arguing with a straight face that our last national election was illegitimate? What happens when those people hold power again? I think we may be at the beginning of a period of deep democratic pathology and authoritarianism. That’s the present danger that maybe scares me more than anything else.
J. Craig Williams: Well Greg, if our listeners want to reach out to you, to talk with you about this thought process further, how can they reach you?
Gregory P. Magarian: So, I’m at Washington University in St. Louis at the law school. They can just get on the website and there’s a faculty entry for every faculty member. I’m [email protected], so they can certainly contact me that way.
J. Craig Williams: Well, as we wrap up, I’d like to thank our guest Professor Gregory Magarian for joining us today. It has been an absolute pleasure having you on the show and what an interesting discussion. Thank you, Greg.
Gregory P. Magarian: Thank you so much. I’m sorry for the occasion but I appreciate you’re having me.
J. Craig Williams: Well earlier this morning, January 6, 2022, a year after the January 6 insurrection, both President Biden and Vice President Kamala Harris spoke and compared the insurrection to the historical significance of the attack on Pearl Harbor and the attack on the World Trade Center, the Pentagon and the downed plane of Pennsylvania on September 11. She is spot-on accurate about the insurrection’s historical significance, but I see a fine point distinguishing those two historical events from the insurrection.
First, Pearl Harbor in September 11 were attacks on the United States by foreigners. Insurrection on the other hand was an attack on America, United States by so-called Americans. In fact, they’re more like terrorists and they needed to be treated as such. Some people are clamoring for long jail sentences and stripping citizenship from them. As President Biden said, “You don’t get to be Americans only when you win.” The fact, can you be an American after you lose an insurrection? You may be going to jail. There’s so far 70 who have had, 170 been arrested. According to Merrick Garland, the trail is going to lead where it’s going to lead, perhaps even to President Trump. It was pretty clear from President Biden’s speech this morning that that’s who he blames for the instruction.
Well, it historically does compare with the Civil War and the questions that Professor Magarian was talking about really is, “Are we at the beginning of the insurrection or are we at the end?” and it all depends on us. Some people claiming democracy that were — were in decline, we’re about to fall like Rome and they said the same thing about the United States after the Civil War, but we lasted 157 years since then. There are very important lessons as Professor Magarian pointed out, a racial divide and a lot of other things dividing our country today. You have to remain strong; you’ve got to remain vigilant to maintain the democracy as a shining beacon to the world, boy, what is stumble.
Well, as we wrap up, I’d like to thank our guest Professor Gregory Magarian for joining us today. And if you like what you heard today, please rate us on Apple podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. Remember when you want legal, think Lawyer 2 Lawyer.
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