Looks like someone has a belated but highly keen interest in Brandenburg after yesterday’s disgrace at the Capitol. Rudy Giuliani, who yesterday whipped up the crowd with a demand for “trial by combat,” claimed earlier this morning that he and Donald Trump reject violence of any kind. “It contradicts our values,” Giuliani tweeted:
Our cause is to obtain an honest vote and to end voter fraud before it becomes a permanent tactic of the enabled and media protected Democrat Party.
Violence is rejected, condemned and counter productive.
Antifa involvement is no excuse.
It contradicts our values.
— Rudy W. Giuliani (@RudyGiuliani) January 7, 2021
We’ll get to the “Antifa” claim in a moment, but first let’s see the “trial by combat” remark in its context. Giuliani runs through his supposed case that the election was stolen by Dominion machines, a claim that has been repeatedly debunked in recounts and tossed out by courts for lack of evidence. Giuliani promises yet another expert who claims that the late shift in vote counts came from nefarious operations rather than the obvious reality that early-vote and absentee ballots got tabulated after Election Day voting — and Trump told his voters not to use early and absentee ballots, so those ballots were overwhelmingly Joe Biden’s.
In the midst of that, Giuliani — an attorney who actually argued a challenge in a Pennsylvania court — demands “trial by combat” while declaring that the authorities wouldn’t allow the crowd to inspect the voting machines for themselves:
The question will be whether this qualifies as an incitement to violence. Giuliani’s not the only one who should be worried about this in the aftermath of the seditious sacking of the Capitol and the deaths of four people, one by gunshot. Immediately after this, Trump himself took the stage and said, “If you don’t fight like hell, you’re not going to have a country any more,” and then declared that he was going to “walk down Pennsylvania Avenue” to pressure “weak Republicans” into action (~4:46:00):
Plus, there was this bon mot before the rally:
I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen. @senatemajldr @JohnCornyn @SenJohnThune
— Donald J. Trump (@realDonaldTrump) January 5, 2021
Are those incitement to the violence that erupted almost immediately afterward? That’s the Brandenburg question, in which the Supreme Court declared that rhetorical fury cannot be considered incitement unless it meets a very narrow test. The First Amendment protects all speech except “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Prosecutors have to distinguish between “mere advocacy” and incitement.
This matters in the aftermath of the riot yesterday, because four people died in the melée and law enforcement wants to round up the ringleaders to press charges. Calling for “trial by combat” puts Giuliani in a tougher position than Trump legally, although it’s probably not enough in either case to put them in real legal jeopardy. It would likely take a more explicit call for violence than either Trump or Giuliani said to cross the line into prosecution. Morally speaking, however, they own what happened yesterday.
That’s why Giuliani made his “Antifa” reference yesterday, but that’s absurd on its face. The people who burst into the Capitol were holding a rally for Trump first, carrying Trump banners, and wearing Trump swag. Our own Julio Rosas was on the scene yesterday and didn’t see Antifa there, plus Andy Ngo — who has been a target of Antifa violence in the past — flat-out rejects that idea:
“The people occupying the Capitol building do not look like antifa people dressed in Trump gear or Trump costumes,” he said in an interview from England.
“I have seen no evidence that they are able to coordinate a mass infiltration on this scale before, so I’m really skeptical that they would have been able to do it here without any of that information leaking out,” he said.
Fox News apparently reported it as a potential Antifa false-flag action, at least in part. They didn’t do much to correct that record later, either:
I asked Fox News multiple times about claims that were made on its air and by its personalities suggesting Antifa was perhaps responsible for the mayhem at the US Capitol. Absolute silence. Zero response from the network’s PR team.
— Oliver Darcy (@oliverdarcy) January 7, 2021
This is nothing more than a dodge by Giuliani for the disgrace that took place yesterday. That was the predictable result of demagoguery over the election results from an attorney who’s been fronting one of the most inept and ill-conceived legal efforts in recent memory. This is Giuliani’s legacy, and it’s likely to be Trump’s as well.