Trump Relies on First Amendment: 'Fight Like Hell' Didn't Actually Mean Fight
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Trump Claims He Was Just Asking Questions About Election Integrity When He Told His Supporters to ‘Fight Like Hell’ or Lose Everything They Care About

US President Donald Trump speaks to the press at General Mitchell International Airport November 2, 2020, in Milwaukee, Wisconsin.

Former President Donald Trump submitted his official response to the U.S. House of Representatives’ memorandum for use in the trial-themed impeachment tribunal that will occur before the U.S. Senate later this month.

True to form, the document was addressed to the “Unites States Senate.”  (Spelling error in original.)

In line with prevailing norms, including the norm that impeachment proceedings ultimately occur in the form of a legal trial, Trump’s response is styled as something of a legal document itself. Specifically, the response all-but mimics answers to interrogatories–which are commonly used in civil proceedings.

Some of those answers immediately drew scrutiny from the legal community.

The House accused Trump of engaging “in high Crimes and Misdemeanors by inciting violence against the Government of the United States” by consistently invoking the specter of never-proven electoral fraud that “should not be accepted by the American people or certified by State or Federal officials.”

Trump admitted to those allegations in part and denied them in part.

“It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” the answer document says. “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.”

New York City-based attorney and author Luppe B. Luppen described that line of argument as instance in which “Trump’s lawyers fail to deny that he incited violence against the Government of the United States.”

The pseudo-filing continues [emphasis in original]:

Like all Americans, the 45th President is protected by the First Amendment. Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation. If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all. Since the 45th President is no longer “President,” the Constitutional clause at Averment 1 above ‘shall be removed from Office on Impeachment for…’ is impossible since the 45th President does not hold office and the current proceeding before the Senate is void ab initio as a legal nullity rendering Averment 4 irrelevant to any matter properly before the Senate.

The House also addressed the 45th president’s verbal broadsides and calls to action during the so-called “Stop the Steal” rally immediately preceding the attack on the U.S. Capitol Complex by hundreds, if not thousands, of the former president’s supporters.

“[Trump] also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at then Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore,’ the document recounts. “Thus, incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious act [sic].”

Here, the former president claims he was just using a rhetorical construction in order to press the Republican Party’s longstanding efforts to decrease access to voting. Trump also insists the entreaties to his supporters had nothing whatsoever to do with the eventual Capitol attack.

“It is denied that the phrase ‘if you don’t fight like hell you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech,” Trump’s answer reads. “It is denied that President Trump intended to interfere with the counting of Electoral votes.”

By invoking the First Amendment. the former president has signaled that he intends to fight the charges like they are subject to legal standards and precedents. In this case, the incitement standard accepted by U.S. courts is from the landmark case of Brandenburg v. Ohio, which held that speech can be prohibited if it is both: (1) “directed at inciting or producing imminent lawless action;” and (2) “likely to incite or produce such action.”

Legal experts say the phrase itself simply isn’t enough to qualify as incitement in an actual court of law.

“Those words, standing alone, would not be enough to establish incitement of an insurrection,” Tulane Law Professor and impeachment guru Ross Garber told Law&Crime.

“Politicians regularly use bellicose language,” the political investigations expert continued. “The question is about context – what was intended, reasonably inferred, and caused by Trump’s rhetoric. The House managers work to paint that context in their brief.”

But, of course, impeachment trials are not actually legal trials. They are constitutional proceedings that imitate the trappings of law (indeed many senators may have an eye toward what looks like precedent in the upcoming tribunal) but are ultimately guided by politics above all else.

“I expect there will be some Republican senators who will vote to convict on the present record,” Garber added. “Many won’t be able to get past Trump’s jurisdictional argument. There may still be others who are persuadable but would need additional information and perhaps a change in the opinion of a substantial part of the Republican base. The question is whether the House will make an effort to reach them, which would likely take live witnesses, additional facts, and time.”

First Amendment litigator Ken White suggested that the argument in favor of impeachment was at least colorable.

“Brandenburg and the subsequent cases interpreting it set a high bar – speech has to be intended and likely to incite imminent lawless action. It’s very rare for a political speech to qualify, but I think that when taken as a whole, and in its entire context, a trier of fact could plausibly find that Trump’s speech qualified. It’s not any one phrase – it’s the combination of phrases, his past rhetoric, the rhetoric of the people he knew were there and the existing atmosphere of encouraging violence, the proximity to the Capitol, and (as proof of intent) his reaction later.”

Trump told his followers to go to the Capitol after a Jan. 6 rally near the White House.  Trump suggested he would meet his supporters there, but he did not.  Despite claims by some conservatives that there were two crowds present — one at the Capitol and one at Trump’s rally — several rally goers admitted they walked from the rally to the Capitol at Trump’s behest.

[image via Brendan Smialowski / AFP via Getty Images]

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