Mary McCord: Trump crosses the constitutional line

President Donald Trump incited insurrection Friday against the duly-elected governors of the states of Michigan, Minnesota and Virginia. Just a day after issuing guidance for reopening America that clearly deferred decision-making to state officials – as it must under our constitutional order – the president undercut his own guidance by calling for criminal acts against the governors for not opening fast enough.

Trump tweeted “LIBERATE MINNESOTA!” followed immediately by “LIBERATE MICHIGAN!” and then “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” This follows Wednesday’s demonstration in Michigan, in which armed protesters surrounded the state Capitol in Lansing chanting “Lock her up!” in reference to Democratic Gov. Gretchen Whitmer, and “We will not comply,” in reference to her extension of the state’s coronavirus-related stay-at-home order. Much smaller and less-armed groups had on Thursday protested on the state Capitol grounds in Richmond, Virginia, and outside the governor’s mansion in St. Paul, Minnesota.

“Liberate” – particularly when it’s declared by the chief executive of our republic – isn’t some sort of cheeky throwaway. Its definition is “to set at liberty,” specifically “to free (something, such as a country) from domination by a foreign power.” We historically associate it with the armed defeat of hostile forces during war, such as the liberation of Western Europe from Nazi Germany’s control during World War II. Just over a year ago, Trump himself announced that “the United States has liberated all ISIS-controlled territory in Syria and Iraq.”

In that context, it’s not at all unreasonable to consider Trump’s tweets about “liberation” as at least tacit encouragement to citizens to take up arms against duly-elected state officials of the party opposite his own, in response to sometimes unpopular but legally issued stay-at-home orders. This is especially so given the president’s reference to the Second Amendment being “under siege” in Virginia, where Democratic Gov. Ralph Northam just signed into law a number of gun-safety bills passed during the most recent session of the state general assembly – bills that prompted protests by Second Amendment absolutists at the state Capitol in January, leading Northam to declare a state of emergency and temporarily ban firearms from the capitol grounds due to the threat of violence.

It’s an echo of the “Second Amendment remedies” rhetoric of the 2010 midterm election. It’s clearly a violation of federalism principles, and it’s quite possibly a crime under federal law. And insurrection or treason against state government is a crime in Virginia, Michigan and Minnesota, as well as most states. Assembling with others to train or practice using firearms or other explosives for use during a civil disorder is also a crime in many states. But the president himself is calling for just that.

Regardless of whether the tweets are criminal on their own, more importantly they are irresponsible and dangerous. Private armed militias recently expressed eagerness to support the president’s veiled call to arms when he shared a comment on Twitter suggesting that if he were impeached and removed from office, it could lead to civil war.

Just a day before, the Oath Keepers’ Twitter account tweeted, in an apparent reference to the president, that “All he has to do is call us up. We WILL answer the call.” Months before, vigilante groups responded to Trump’s frequent rhetoric about an “invasion” on America’s southern border by deploying to the border and illegally detaining migrants while heavily armed, dressed in military fatigues and calling themselves the “United Constitutional Patriots.”

Trump has a bully pulpit unlike an ordinary citizen. His Twitter account boasts over 77 million followers, but many more see his tweets when they’re retweeted by others, posted on other social media and covered by media outlets. He is prolific, having tweeted more than 50,000 times. And he is influential: His three “Liberation” tweets have been retweeted and “liked” hundreds of thousands of times. We are not talking about a typical person when we consider the impact of his statements.

That’s why we can’t write these tweets off as just hyperbole or political banter. And that’s why these tweets aren’t protected free speech. Although generally advocating the use of force or violation of law is protected (as hard to conceive as that may be when the statements are made by someone in a position of public trust, like the president of the United States), the Supreme Court has previously articulated that where such advocacy is “inciting or producing imminent lawless action and is likely to incite or produce such action,” it loses its First Amendment protection. The president’s tweets – unabashedly using the current crisis to encourage a backlash against lawful and expert-recommended public health measures, falsely claiming a Second Amendment “siege” and calling for insurrection against elected leaders – have no place in our public discourse and enjoy no protection under our Constitution.

Mary McCord is legal director of the Institute for Constitutional Advocacy and Protection and a visiting professor at the Georgetown University Law Center. She was acting U.S. assistant attorney general for national security from 2016 to 2017.