Someone shouted “fire” in a crowded theater. That’s not protected free speech. See Schenck v. United States in 1919, and Oliver Wendell Holmes, Jr.’s opinion. He came up with that analogy. No one is allowed to create a panic. That’s dangerous. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action, like a riot. A little panic is okay. That happens. A riot isn’t okay. Don’t call for one.
No one gets a pass on that. There are no exceptions:
A Republican congressman’s Jan. 6 speech at a rally ahead of the riot at the U.S. Capitol is not covered by protections for members of Congress and federal employees, the Justice Department said in a court filing Tuesday – drawing a legal line over attempts to stop the certification of the 2020 election results.
Rep. Mo Brooks (R-Ala.) had argued that he is effectively immune from a lawsuit filed by his colleague Rep. Eric Swalwell (D-Calif.) that accused Brooks, then-President Donald Trump, and others of fomenting the failed attack on Congress.
He isn’t immune:
Past court opinions and Justice Department legal interpretations have given broad safeguards to protect elected officials who are sued over their public statements. But in the case of Brooks, the Justice Department decided he went too far.
The agency “cannot conclude that Brooks was acting within the scope of his office or employment as a Member of Congress at the time of the incident out of which the claims in this case arose,” the court filing said. “Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative – or any federal employee.”
That’s the official DOJ position, as they read the law. Mo will argue that they’re wrong, as this now goes to court, but even if Mo brings along Larry and Curly or whatever legal ream he can muster, he did say this:
During a speech at the Jan. 6 rally, Brooks told the crowd to “start taking down names and kicking ass.” He has argued that his statements were part of his work as a representative of a district where 64 percent of voters chose Donald Trump over Biden. As a federal employee, Brooks says, he has immunity from lawsuits for actions taken within the scope of his job.
Incitement to riot is not within the scope of his job. He says he was just using colorful language, but even if he had been calling for a riot, or for the violent overthrow of the government, or for just the assassination of Nancy Pelosi but not overthrow of the government, he can still say anything he wants, because that’s his job.
He may be laughed out of court, but at least he has an argument:
Swalwell, a House impeachment manager and Intelligence subcommittee chairman who sits on the Judiciary and Homeland Security committees, is also suing the Trump’s son Donald Trump Jr. and attorney Rudolph W. Giuliani, neither of whom can mount a federal employee defense. Swalwell alleged that the four men made incendiary false claims at the Jan. 6 rally that led directly to the violent attack on the Capitol.
Junior and Rudy will have to think of something else. Trump has not asked the Justice Department to intervene, as Mo Brooks did. He’s no mere congressman. Trump argues that as the former president he has “absolute immunity” from the suit – and from everything else too. He was the president, damn it!
Of course he was (past tense) but he actually did shout “fire” in the crowded American theater, to incite imminent lawless action, in fact, to incite a riot. This was the day the testimony against him began. The Washington Post covered that this way:
A House select committee examining the events of Jan. 6 opened its investigation Tuesday with vivid, visceral testimony from four law enforcement officers who were among those attacked as they defended the U.S. Capitol from armed supporters of President Donald Trump, delivering an emotional portrait of the insurrection’s lasting toll more than six months later.
“January 6th still isn’t over for me,” Capitol Police Officer Harry Dunn told lawmakers, describing how protesters dressed in Trump campaign paraphernalia called him the n-word – and did the same to several of his Black colleagues. “Is this America?” he said.
There was much more. One officer was told by these folks that Trump sent them and he had to choose sides, join them or be beaten to death. But maybe he misheard what was said. No one was going to agree about any of this:
The select committee’s members believe the first-person accounts of such intensely traumatic experiences will resonate with the American public, cutting through the bitter political war in Congress over how the Capitol riot should be investigated – and who bears responsibility for it.
Republican leaders have boycotted the investigation and sought to blame House Speaker Nancy Pelosi (D-Calif.) for the casualties as a way of deflecting scrutiny away from Trump, who was impeached and acquitted earlier this year on charges he incited the violent bid to prevent lawmakers from certifying electoral-college results and declaring Joe Biden the next president.
Hey! Trump was impeached and acquitted! This is over!
No, it isn’t:
The officers’ testimony Tuesday was interspersed with video showing rioters physically and verbally assaulting the police who stood in their way. As the images played, Capitol Police Officer Aquilino Gonell, who has required surgery to repair the injuries he sustained during the incursion, wiped away tears.
Gonell, a naturalized American citizen and Iraq War veteran, characterized the bedlam as like something from “a medieval battle.” He described how his hands, shoulder, calf and foot were hurt in the attack – and wept while explaining how he couldn’t even hug his wife upon returning home, fearing the chemicals that had seeped into his clothes and were burning his skin would make her sick, too.
“To be honest, I did not recognize my fellow citizens who stormed the Capitol on January 6th or the United States that they claim to represent,” he testified, adding, “Nothing in my experience in the Army or as a law enforcement officer prepared me for what we confronted.”
None of this sort of testimony was allowed at the impeachment trial. No testimony was allowed at the impeachment trial. Minds had been made up already. Everyone knew what would happen. Call the vote. They did, but now there was this:
Later, when Rep. Liz Cheney (R-Wyo.) asked Gonell how it made him feel to know that Trump had described the rioters as a “loving crowd,” his residual anger was palpable.
“It’s upsetting. It’s a pathetic excuse for his behavior, for something that he himself helped to create – this monstrosity,” he said, his voice deliberate and calm, adding: “If that was hugs and kisses then we should all go to his house and do the same thing to him. That’s a shame on him himself.”
Gonell later said that he was not encouraging anyone to march on the former president’s home.
But he had made his point, and there was this:
At one point in his testimony, D.C. police officer Michael Fanone – who suffered a heart attack and a traumatic brain injury and said he heard rioters threaten to “kill him with his own gun” – banged his hand on the witness table to accentuate how “disgraceful” it was that some Republican lawmakers were trying to make light of what he endured defending the Capitol.
At several points throughout the hearing, observers and some lawmakers dabbed at their eyes.
“Democracies are not defined by our bad days. We’re defined by how we come back from bad days,” said Rep. Adam Kinzinger (R-Ill.), stifling back tears, adding, “For all the overheated rhetoric surrounding this committee, our mission is very simple: It’s to find the truth, and it’s to ensure accountability.”
The other Republicans shrugged. This whole exercise was no more than just another pathetic attempt to attack Trump and all Republicans, but that had gotten complicated:
Kinzinger joined the panel only Sunday, days after House Minority Leader Kevin McCarthy (R-Calif.) announced his intention to boycott the investigation following Pelosi’s refusal to seat two of the five Republicans he had recommended. Though McCarthy has threatened to revoke the committee assignments of any Republicans who participate in the investigation, Kinzinger lobbied the speaker to be included alongside Cheney. They are the only two Republicans who voted for establishing the select committee, after efforts to set up an independent commission of experts, equally weighted between Democratic and GOP appointees, faltered in the Senate.
You didn’t want an independent commission of experts? Too bad. You’ll have to live with this:
Contrary to most other House Republicans, Cheney and Kinzinger have argued that the panel must have an unfettered mandate, including access to witnesses who may help them re-create “every minute of that day.”
“Honorable men and women have an obligation to step forward,” Cheney said in her opening remarks. “If those responsible are not held accountable and if Congress does not act responsibly, this will remain a cancer on our constitutional republic.”
So the four officers spoke:
The officers testifying Tuesday said that the rioters were armed and ready to bulldoze down all barricades to prevent Biden from being certified as the next president. They described in detail how the rioters used hammers, knives, chemical sprays and protective gear to push their way into the Capitol – and how they had received no warning from superiors to prepare for such an attack.
As a result, they were wildly outnumbered. Hodges estimated that about 150 D.C. police officers faced down an estimated 9,400 rioters outside the Capitol complex, some of whom law enforcement suspected of carrying concealed firearms.
“If that turned into a firefight, we would’ve lost,” Hodges said, “and this was a fight we couldn’t afford to lose.”
But that did not work out well for him:
To those who have followed the various congressional and criminal investigations of the Jan. 6 riot, or Trump’s second impeachment trial, Hodges may be familiar as the police officer who was crushed in a door by protesters trying to breach the Capitol. His screams have been featured in video that has been aired in the Senate chamber, across television networks and again in the House select committee room Tuesday.
And he added his own commentary this time:
Hodges addressed lawmakers in a low tone, speaking with more precision than emotion but showing a simmering anger as he recalled what he and his fellow officers encountered. He almost always referred to the perpetrators as “terrorists” and appeared so disciplined about his choice of words that eventually the others testifying began to use the term as well.
At one point, Rep. Jamie B. Raskin (D-Md.) asked him why he had chosen to use that word. Hodges said he “came prepared” for that question, and then read aloud from the section of the U.S. code containing the legal definition of domestic terrorism.
That would be the use of violence to force a change in government policy or to force a change in government. That fit, and then there was this:
It was evident from their testimony Tuesday that, to a certain extent, the officers continue to struggle making sense of what happened Jan. 6. Dunn made a direct appeal for lawmakers to review whether the support services available to officers “are sufficient enough to meet our needs.” He also encouraged any officers listening to his testimony to seek help if they need it.
Kinzinger asked all four officers how it made them feel when people said it was “time to move on” from Jan. 6. “Does this feel like old history and time to move on?”
Each responded no. When it came his turn, Hodges thought for a moment and added, “There can be no moving on without accountability.”
Okay, were the out to get Trump? Damn straight they were, but Dana Milbank covers the other side:
The select committee investigating the Jan. 6 attack on the Capitol held its first hearing Tuesday, and Republican lawmakers took the occasion to demand justice – for the terrorists who took up arms against the U.S. government on that terrible day.
Six Republican members of the House, escorted by a man in a giant Trump costume bearing the message “TRUMP WON,” marched on the Justice Department Tuesday afternoon to speak up for those they called “political prisoners” awaiting trial for their roles in the insurrection.
“These are not unruly or dangerous, violent criminals,” Rep. Paul Gosar (Ariz.) proclaimed at a news conference outside DOJ headquarters. “These are political prisoners who are now being persecuted and bearing the pain of unjust suffering.”
Rep. Louie Gohmert (Tex.) speculated that “we have political prisoners here in America.”
That’s just what Vladimir Putin had said the month before, so these six Republican members of the House say so too:
They distributed copies of a letter alleging the Jan. 6 defendants had been denied “potentially exculpatory evidence” and subjected to “cruel and unusual punishment.” Their supporters waved signs proclaiming “Free the Jan. 6 Political Prisoners,” and “Jan. 6 Was an Inside Job.”
The lawmakers, ironically, had to cut short their defense of the insurrectionists, because demonstrators disrupted them with heckling, whistleblowing and signs (“Traitors Sit Down”).
The half-dozen lawmakers, including Matt Gaetz of Florida and Marjorie Taylor Greene of Georgia, made explicit what has become more obvious by the day: Republicans stand with those who attempted a violent coup on Jan. 6. And it’s not just the wingnuts. House Republican leaders held a news conference before the hearing, blaming Jan. 6 not on seditionists but on Capitol Police and, particularly, House Speaker Nancy Pelosi.
That’s their story now:
With the Capitol Dome behind her, Rep. Elise Stefanik (N.Y.), the House Republican conference chair, proclaimed: “The American people deserve to know the truth, that Nancy Pelosi bears responsibility, as speaker of the House, for the tragedy that occurred on Jan. 6.” Stefanik charged that Pelosi “doesn’t want a fair or bipartisan investigation.”
Rep. Jim Banks of Indiana, one of the saboteurs House GOP leader Kevin McCarthy had tried to place on the select committee, announced that Capitol Police “weren’t trained” adequately and that “Nancy Pelosi is ultimately responsible.”
The Republican whip, Steve Scalise (La.) repeatedly accused Pelosi of a “coverup” about Jan. 6. And Rep. Troy Nehls (Tex.) denounced fellow Republicans Liz Cheney (Wyo.) and Adam Kinzinger (Ill.), for serving on the select committee. “Those Pelosi Republicans aren’t interested in the truth,” he alleged. “We’re interested in the truth.”
But irony is not dead:
Seven of the eight Republicans standing there had voted down an independent, bipartisan commission negotiated by the top Republican on the House Homeland Security Committee. And now they claim Pelosi is the one blocking a fair, bipartisan investigation? All this while faulting the Capitol Police, who at that very moment shielded them with a ring of officers, barriers, vehicles and a canine unit.
And then, suddenly, it was all over:
The insurrectionists’ allies grew anxious as more hecklers arrived and unfurled signs calling them racists, rapists and traitors and “Pedophiles for Trump.”
“Wrap it up,” a worried staffer told the lawmakers. “We got to get out.”
They fled to waiting vehicles, one of which sped off the wrong way on 9th Street NW. It swerved in front of oncoming traffic onto Pennsylvania Avenue amid a hail of honking horns.
They had a bad day and Paul Waldman adds this:
There are people who believe that the moon landing never happened, that the astronauts in the footage all the world saw were actually bouncing around on a soundstage hidden away somewhere. But they aren’t making our laws, they aren’t invited on TV to discuss their perspective, and they don’t have the ability to influence millions.
Yet there are people who deny the truth of what happened in Washington on Jan. 6, despite all the video, all the contemporaneous reports, all the guilty pleas, and all the testimony. And they have a lot more power.
Tuesday’s first hearing of the select House committee investigating the insurrection, with vivid testimony from four police officers who stood against a mob of President Donald Trump’s supporters overrunning the Capitol in an attempt to overturn a presidential election, should put at least some questions about that day to rest.
Yes, this was Trump:
The officers seemed particularly incensed that the truth of what happened that day is denied by so many on the right, from Trump himself on down.
“To me, it’s insulting, just demoralizing because of everything that we did to prevent everyone in the Capitol from getting hurt,” said Capitol Police Sgt. Aquilino Gonell about the effort to minimize what happened that day, including by Trump. (“It was a loving crowd,” the former president told Washington Post reporters Carol Leonnig and Philip Rucker, “There was a lot of love. I’ve heard that from everybody.”)
Gonell also addressed the various conspiracy theories propagated by some very high-profile figures on the right, claiming that the insurrection might have been a false-flag operation. “It was not antifa,” he said. “It was not Black Lives Matter. It was not the FBI. It was his supporters that he sent them over to the Capitol that day.”
They said so. They insisted. The five hundred or so arrested and changed in this matter still say so, but somehow that doesn’t matter, although it should matter:
Some, like Trump, assert that the riot was no big deal (“By and large it was peaceful protest,” said Republican Sen. Ron Johnson of Wisconsin). Others say that, while it was certainly bad, it doesn’t have anything to do with any larger political forces and should be put behind us.
But the truth is that there was nothing isolated about the event. Those rioters came to Washington at Trump’s behest. They assaulted the seat of our government in an effort to prevent the final certification of an American presidential election. And to this day, most of the GOP continues to stoke the fires of racial resentment and contempt for the democracy that made it possible.
And that leaves this:
Here’s what will happen now. First, those on the extreme right – both individuals and those in fringe media outlets – will attack the officers who testified Tuesday, claiming that they’re impostors or liars or liberal Democrats only seeking to harm Trump.
Next, those claims will soon be echoed in slightly more presentable form on outlets with broader audiences. Hosts on Fox News and the like will disseminate some new conspiracy theory about these officers, presented as “just asking questions.” Inevitably, the officers will be targeted with a torrent of hate and threats.
While many Republican officeholders will try to avoid talking about Jan. 6 at all, others who see how their party base and the conservative media are responding will continue to stand against the truth in one way or another. Some may indulge conspiracy theories without completely embracing them. Others will follow the lead of the House Republican leadership and say nonsensically that the insurrection was Speaker Nancy Pelosi’s fault.
And a month or a year from now, you’ll see some new poll with alarming figures about how many rank-and-file Republicans believe the insurrection was a good thing, or that those who carried it out were legitimately expressing their grievances over an election so many in the GOP still say was stolen, or that the whole thing has been blown out of proportion anyway.
In short, the truth got a boost from those four officers, but only a boost, for now. There are other voices. Alexandra Petri hears this:
Let me see if I have this straight. I am just trying to organize all the things that I have been told, with a straight face, to believe about the Jan. 6 insurrection at the Capitol. First, this was just a normal tour, full of people with a “jovial, friendly, earnest demeanor.” These “very special” people arrived at the Capitol because the election had been stolen from them, but they meant no harm; the gallows they erected was just… well, we’ll come back to that. These people were going to bring, they tweeted, the Calvary (“a public display of Christ’s crucifixion, a central symbol of her Christian faith with her to the president’s speech, a symbol of faith, love and peace”), not the cavalry. It was in this positive, uplifting spirit that a man went into House Speaker Nancy Pelosi’s office and left her the inoffensive note, “Hey Nancy, Bigo was here biatd,” which wasn’t ominous because it meant nothing at all.
But also, the events of Jan. 6 were all Nancy Pelosi’s fault, because she denied the Capitol Police the support they needed, although they didn’t need the support because it was good that the tourists were there having a pleasant, wonderful, jovial day (except for the antifa provocateurs, who weren’t, but they were only visible to some people who were sufficiently pure in heart), and they barely had any weapons at all and meant no harm.
Do I have it right? It doesn’t matter. The people saying this don’t care. They are just saying these things to see how much we are willing to swallow.
Yes, this is a test:
The point is not that the Unified Trump GOP Canon for What Truly Happened on Jan. 6 is being continually and contradictorily rewritten. The point is not that what we are being told is absurd, inconsistent and downright goofy. The point is that the specifics don’t matter; what matters is that we are being told, blatantly, repeatedly and without shame, that we simply did not see what we saw, and we are expected to go along with it. This is an exercise in power, to see how malleable our reality really is.
That is the test from this day forward. We did see what we saw. These four officers testified to that. Someone may remember this day.