Would Trump's defence work in other courts?

Question

Donald Trump's defence against incitement is essentially the ambiguity of his language: he never explicitly told the crowd to violently attack Congress, but he did use ambiguous words such as "fight", which many in the crowd understood as an instruction to do just that.

This seems to me to be akin to a mafia don's method of ordering a hit: he uses ambiguous language such as "peacefully deal with the problem". Even if this is secretly recorded, in court his defence against a charge of soliciting murder is that he never actually gave any such order, and some overzealous underling misunderstood.

In general, does such a thing work? How does the prosecution in such a case get over the hurdle of proving that an order was given when the language used is always couched in euphemistic codes?

Edit in response to various comments and answers:

I do not want answers that argue about the precise semantics of words like "fight". I'm interested in the legal principles used to resolve such ambiguities, not the particular ambiguities used by Trump in the lead-up to 6th January.

Answer 1

In all cases of speech in U.S. Jurisprudence, the speech uttered is presumed First Amendment Protected unless proven otherwise. Critical to this proof is the intent of the speaker and his/her word choice and usage. In order to prove that Trump uttered unprotected speech, the prosecution must show that the language was deliberately spoken by Trump to promote Imminent Lawless Action (Brandenberg v. Ohio). That means that not only must the actions come with a defined time of action, but it also means that you have to prove Mens Rea - that Trump knew in his mind at the time he spoke that the words would incite. Finally, you cannot cherry pick a quote but rather must view the totality of the events in question. Trump did make statements against violence prior to and following the speech in question, which suggests he was not advocating for violent actions taken that day.

The word "fight" which does not always mean a violent. Miriam-Webster's definition of "to fight" is:

1 : to struggle in battle or in physical combat. 2 : to argue angrily : quarrel. 3 : to try hard

While the first definition of the word does indicate physical violence, but the second and third are possible to do with no violence whatsoever. The concept of fighting for something is often used by people at constitutionally protected protests and gatherings and the use of the term has never been used to convict the speaker for the misinterpretation of the words by the person who hears them. If this were the case, you can expect the Beastie Boys to get slapped with criminal charges for their advocacy of fighting for the right to Party (incidentally, the song never once advocates for violence in the pursuit of wild teen parties... it's merely a list of the restrictions and hypocrisies of the rule makers and enforcers).

What's more, Mafia Dons don't normally go down for specific instructions to "kill the mook" but rather for RICO charges. Their whole organization is corrupt and thus they can be held responsible for the corrupt actions of people in their chain of command in the organization. There has yet to be any evidence supporting that Trump knew and participated in the planning of the assault on Congress. Yes, there was planning prior to the events, which means people would have done this without Trump's speech... which means they were not instructed specifically by him at the time. Trump could have said something different and the results would be the same. On top of that... the violence at Congress was started during Trumps speech, not after it... and the place where the speech was given was far enough away from Capitol Hill that it would be difficult to argue that the first wave of rioters even heard the speech let alone were influenced by it.

You can believe this was Trumps goal all you want, but the fact of the matter is the law says that Trump does not have to do anything to prove his intent. The burden of proof rests with he who doubts is enforce and in order to prove the speech was unprotected, you have to show clear evidence Trump did intend for the riot to happen.

Answer 2

The meaning of any utterance can only be understood through implicit or explicit interpretation. A prosecutor trying to prove that Trump incited an insurrection must, as hszmv layed out, show

• His message was a call to insurrection.
• He knew what could happen.
• He did it intentionally.

I'll focus on the first requirement because you ask specifically about whether ambiguous language can prevent the prosecution from proving that he meant that.

The question concerns the core of all communication: How do we know the meaning of something? The most basic theory, a mere description in fact, lists three steps of information transmission:

1. Encoding
2. Transmission
3. Decoding

We can assume that the transmission and the physical level of encoding and decoding was near-perfect; there was a sound system and there are recordings, so there is not much ambiguity on actual signal. The prosecution must then show that Trumps ambiguous wording was an encoded incitement of insurrection. They must "reverse-engineer" the encoding Trump did, that is, decode it from Trump's perspective.

As an example, take the sentence "Give him the special treatment." Obviously a waiter in a bar whose boss just pointed out a celebrity would not go and shoot the patron. On the other hand, a gang of Mafia henchmen would not go and give their victim the best table in the house after hearing this from their boss. The respective recipients properly decode it because they consider the context. Natural language is imbued with meaning by context. (As an aside, that's why it is hard to understand for artificial intelligence¹.)

Examples for context are

• The position or function of the speaker (Bar owner or Mafia boss)
• The audience (a waiter or a group of armed killers)
• Other utterings preceding or succeeding the one in question ("he was at SNL yesterday" vs. "he didn't pay yesterday although Enzo asked him very kindly")
• The setting (a restaurant or a Mafia home)
• How past utterances in similar context were meant.

A court needs to — implicitly or explicitly — reproduce this encoding considering the relevant context.

Whether you like it or not, to answer the question we necessarily must investigate the intended meaning of this particular use of "fight"; since you are not interested in the details I have moved it to the footnotes.² But it is for first reasons unavoidable that prosecution, defense and court each must perform an interpretation — namely the attempt to reproduce the speakers "encoding process" — of the spoken words.⁴

---

_{¹ As a famous urban myth example: "The spirit is willing, but the flesh is weak" was translated by an AI as "the liqueur went down nicely but the steak was bad."}

_{² Yes, fight can have different meanings in different circumstances. If you make an appeal to "join ChildFund in the fight against child mortality" no one will reach for their baseball bat. But Trump's use of "fight" was in a decidedly different context from which we can infer its meaning. The passage started with "we will never give up, we will never concede" (emphasis mine). "Concede" has a specific meaning in an election context: It means that one accepts the result of the election and adjusts one's behavior accordingly (prepares to move out of the office, starts the transition of command etc.). At this point the election result had been confirmed by the relevant administrations and courts. The statement "we will never concede" under these circumstances is the refusal to acknowledge the outcome of a legal procedure. It is a resolution to be lawless.}

_{This is the stage that was set for his infamous "If you don't fight like hell you're not going to have a country anymore". The context is a commitment and appeal to lawlessness; the audience is not a convention of lawyers who would fight in court; it is not an assembly of campaign workers who go out and fight for every vote; this is a partially armed crowd of vigilantes. "Fight" in this context must be understood as a physical, violent conflict.}

_{This appeal passes legal muster which renders it unprotected by the first amendment:}

<sub>- The action is imminent: The speech is held in the vicinity of the Capitol, with a crowd ready to take action.
- The action called for is unlawful: As we established, he calls for a violent intervention.
- Trump has mens rea: He openly refuses to lawfully concede. The call for violent intervention is a call to help him resist his removal from office.</sub>

_{His speech is a conscious appeal for an imminent, unlawful, potentially armed intervention against the final outcome of an election. It is an incitement of insurrection.}

_{⁴In an interview in the New York Times the law professor and former prosecutor, Andrew Weissmann, makes exactly this argument, down to the Mafia example, in the context of the New York State lawsuit regarding falsifying business records. Emphasis is by me.}

_{The interviewer asks:}

_{Donald Trump didn’t literally say the words “falsify the business records” or “this is a payment to cover you on that money you sent to Stormy,” or something. And if I’m a regular person on that jury, and this is a former president of the United States facing criminal charges or conviction, I think there’s a part of me that wants to hear Michael Cohen or some corroboration that former President Trump said very specifically, “I want you to do X,” and that X is clearly a crime.}

_{The professor answers:}

_{When he says, “Just take care of it,” in terms of paying the money to silence Stormy Daniels, you don’t say, “I just want to make sure that you know what I mean is, you need to pay the money.” I mean, for God’s sake, he signed the checks.}

_{The professor draws even the Mafia parallel:}

_{We used to say that in organized crime cases that you’re not going to hear that the members of the Gambino family said: “We’re the Gambino family. We’re a RICO conspiracy and this is an enterprise and we’re going to all sign an indenture agreement,” as if it’s a business deal on Wall Street. When you have someone describing a criminal conspiracy, I think you look for that where things are said, in that — I won’t say indirect way — but they don’t have to be spelled out.}

_{The professor concludes with}

_{He wanted plausible deniability. He didn’t sign things because of that. He said, “I don’t want to use email because people go down because they use email.”}