Where was law enforcement?

President Donald Trump repeatedly used and threatened military action against demonstrators and rioters throughout 2020 in the aftermath of George Floyd’s death. Trump fired his defense secretary who opposed using federal forces on protestors and demonstrators this summer.

None of those protests involved occupying the center of American government — you know, the sort of thing that you might think troops might staunchly defend.

Mid-afternoon, hours before troops and riot squads moved in, I spotted a tweet that really resonated with me:

This was the capitol’s security when there were black protestors on the streets pic.twitter.com/WpYT2Lz0md

— William LeGate 🇺🇸 (@williamlegate) January 6, 2021

Thoughtful people will ask in the days ahead why the response to this uprising was so different.

The president has, at his disposal, something called the Insurrection Act. This is what the act says:

An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

APPROVED, March 3, 1807.

In order to use it, the president “must first issue a proclamation ordering the insurgents to disperse within a limited time” (10 U.S.C. § 334.4). Trump did not order his followers to leave. He asked them to go home. He did not set a time. Hours before, the mayor of Washington, D.C., ordered a curfew.

On Jan. 3, all 10 living former U.S. defense secretaries warned against using the military to overturn the election. They could not have imagined that the military would have to be called in to defend the election and the very building where it would be confirmed.

Remind yourself that this was the same president who promised the forceful protection of statues of Confederate soldiers. He did not use the same language or the same authority to protect the U.S. Capitol from his own supporters.

Is it illegal to encourage a riot?

If what happened at the Capitol was a riot, can anybody be charged with inciting it?

On Wednesday, President Donald Trump’s lawyer, Rudy Giuliani, called for “trial by combat.” In front of the same crowd, the president’s son Don Jr. told members of Congress who don’t vote to overturn the election, “We’re coming for you.” President Trump in December invited followers to come to Washington, D.C., saying, “Big protest in D.C. on January 6th. Be there, will be wild!”

Look to the law for some clarity. For starters, the federal law requires some components to qualify as a “riot:

(1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or

(2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

The events at the Capitol sure meet all of those requirements. So what does it take to qualify as “inciting” a riot? Again, the federal code:

As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

That section of the law would make it more difficult to say Trump or his surrogates incited a riot. We do not have proof that they told the rioters directly to go invade the Capitol. Instead, they may say something like, “I would not blame you if you did.”