Donald Trump did what the Chicago Seven were wrongly accused of doing: He incited a riot

As commander-in-chief, Trump was ultimately responsible for the security of the nation’s capital. But evidence shows that the president deliberately did nothing to protect the U.S. Capitol from the riot he was inciting. 

There’s certainly strong evidence that Trump’s actions were so egregious that he could be indicted for what the Chicago Seven were wrongly accused of: conspiring to incite a riot and actually inciting a riot. Yet there’s a high legal bar to convict someone of incitement because of free speech rights guaranteed under the First Amendment of the U.S. Constitution. However, members of the U.S. House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol have indicated that there are more serious charges that Trump and his cronies could face.

The committee’s top Republican, Rep. Liz Cheney of Wyoming, has suggested that by failing to stop the violence at the Capitol on Jan. 6, Trump violated the federal law that prohibits obstructing an official proceeding before Congress. That’s punishable by up to 20 years in prison.

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I didn’t need to view The Trial of the Chicago 7 to make comparisons between what happened from Aug. 25-29, 1968 in Chicago with the Jan. 6 insurrection. That’s because I was a first-hand witness. I was only 17 and had come to Chicago ahead of freshman orientation week at the University of Chicago, and worked as a volunteer for Sen. Eugene McCarthy’s presidential campaign.

None of the protesters went around saying Abbie Hoffman, Jerry Rubin, or Tom Hayden sent them. No one showed up clad in tactical military gear or armed with stun guns, bear spray, baseball bats, and flagpoles. That week, people were mostly running away from police rather than attacking them.  

We were there to show our opposition to the Vietnam War and support for a “peace plank” in the Democratic Party platform after a tumultuous year that had already seen the assassinations of Rev. Dr. Martin Luther King Jr. and Robert F. Kennedy.

I still have vivid memories of what happened on Sunday night, Aug. 25—the eve of the convention’s opening day. We had set up a McCarthy literature table in Chicago’s Old Town nightlife district. Shortly after 11 PM, we heard loud screams coming from nearby Lincoln Park as police moved in to enforce a curfew. The city had denied a permit for protesters to camp out in the park.

Soon the streets were filled with police chasing and clubbing protesters. The smell of tear gas permeated the air—the opening salvo of what a federal commission later determined was “a police riot.”

The Second City comedy club opened its doors so people could seek refuge, and declared an open bar. Finally, early Monday some of us packed into a VW Beetle and drove to safety on the South Side.

During the Chicago Seven trial, two of my acquaintances testified for the defense. I was working part time as an editorial assistant on the Chicago Sun-Times’ City Desk with photographer Duane Hall. He was clubbed by Chicago police on Wednesday, Aug. 28 near the Conrad Hilton Hotel on the worst night of violence during convention week.

One of my roommates, Ed Phillips, was a medic in Grant Park that night who testified that he ended up bleeding from a head wound after being clubbed by a Chicago police officer. The prosecution asked him whether he could identify the police officer who attacked him. Ed replied something to the effect of: “No, he hit me from behind.”

In September 1968, The National Commission on the Causes and Prevention of Violence, formed by President Lyndon B. Johnson after the King and Kennedy assassinations, set up a study group that was headed by lawyer and future Illinois governor Daniel Walker to investigate the violence during the convention protests.

The Walker Report, issued on Dec. 1, found that while some protesters had deliberately provoked police, the police had responded with “unrestrained and indiscriminate police violence on many occasions” against protesters and bystanders alike. The report characterized what happened as “a police riot.”

LBJ’s attorney general, Ramsey Clark, did not seek indictments related to the convention protests and was barred by federal judge Julius Hoffman from testifying before the jury as a defense witness in the Chicago Seven trial.

Nixon Attorney General John Mitchell, however, insisted on making an example of leaders of the anti-Vietnam War movement by putting them on trial. Mitchell himself later spent 19 months in prison after he was convicted in 1977 for conspiracy, obstruction of justice, and perjury for his role in the Watergate break-in and cover-up as chairman of Richard Nixon’s reelection campaign.

Eight alleged leaders of the Chicago protests were charged under the 1968 Anti-Riot Act: Abbie Hoffman, Jerry Rubin, David Dellinger, Renee Davis, Tom Hayden, Bobby Seale, John Froines, and Lee Weiner. A mistrial was declared in the case against Seale, co-founder of the Black Panther Party, who was chained and gagged in court after protesting being denied his choice of legal representation, which brings us to the Chicago Seven.

All seven defendants were acquitted on the charge of conspiring to cross state lines with intent to incite a riot. Five of the seven were found guilty of crossing state lines to incite a riot and sentenced to the maximum five years in prison. Their convictions were reversed by an appellate court because of Hoffman’s biased and improper conduct of the trial.

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The controversial Anti-Riot Act used to try Seale and the Chicago Seven was the creation of racist conservatives.

The Chicago Seven were charged under the long controversial Anti-Riot Act of 1968, colloquially known as the H. Rap Brown Law. Brown was a civil rights activist and, for a time, served as chairman of both the Student Nonviolent Coordinating Committee and as Minister of Justice of the Black Panthers. He was also among the prime targets of COINTELPRO, a covert FBI program that spent years using blackmail, surveillance, and other tactics against groups and individuals from Martin Luther King to the Weatherman organization and the Panthers.

In 1967, after the FBI had identified Brown as a target for “neutralizing,” he was charged and prosecuted for carrying a gun across state lines and inciting a riot. The prosecution of Brown inspired segregationists and other advocates of “law and order” to insert the Anti-Riot Act in a 1968 fair housing bill. The act criminalizes, among other things, traveling in, or employing instrumentalities of, interstate commerce in connection with inciting or organizing a riot.

It sat on the books mostly unused after the Chicago Seven trial because of questions of whether it banned constitutionally protected speech. But more recently, the Department of Justice has used the act against violent white supremacists, including organizers of the 2017 “Unite the Right” rally in Charlottesville, Virginia, in no small part because there is still no federal domestic terrorism statute.

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In the days immediately following the Jan. 6 insurrection, legal experts debated over whether Trump could be charged with inciting a riot along with other even more serious offenses. Former federal prosecutor Randall Eliason wrote in The Washington Post on Jan. 7, 2021 that the Biden Justice Department should convene a grand jury investigation of “Trump’s unprecedented assault on America’s democracy.”

“We want to avoid the risk of criminalizing political differences. But that understanding has nothing to do with what happened at the Capitol. It’s impossible to characterize Trump’s incitement of the riot as having anything to do with the legitimate exercise of his executive power—just the opposite,”  Eliason wrote.

The House article of impeachment, passed a week after the insurrection, read: “Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” Multiple civil lawsuits filed against Trump by Capitol Police and D.C. Metro Police officers also laid out a compelling case for charging Trump with incitement.

It puts things in a clear perspective if you compare what Chicago Mayor Richard J. Daley did in 1968 with what Trump didn’t do in the weeks leading up to the Jan. 6 insurrection. Daley exaggerated the threat posed by the protests and did everything possible to discourage demonstrators from coming to Chicago. The city denied all but one of the permits requested by protest organizers to hold rallies and camp out in city parks. The permit refusals resulted in police initiating the violence.

During convention week, Daley had forces in place to prevent protesters from getting anywhere near the convention hall. There were 12,000 members of the Chicago Police Department on 12-hour shifts, while the U.S. Army deployed 6,000 troops to protect the city; nearly 6,000 members of the Illinois National Guard were also sent to Chicago. These forces actually outnumbered the 10,000 activists who showed up. And there were hundreds of federal and local undercover agents circulating among the protesters and their leaders.

When it comes to Jan. 6, Donald Trump did the exact opposite.

Just five days after the Electoral College cast their votes, Trump put out his tweet calling for a “wild” protest on Jan. 6, when Congress was scheduled to meet to count the electoral votes. It, along with the entirety of Trump’s permanently banned account, has since been deleted by Twitter.

As the lawsuits filed by Capitol Police officers note, Trump supporters immediately took his message as a call to arms.

A user named “EvilGuy” posted on TheDonald.win.com: “I will be open carrying and so will my friends. We have been waiting for Trump to say the word. There is not enough cops in DC to stop what is coming.”

Another user wrote: “Storm the People’s House and retake from the fuckin’ commies.” 

A ProPublica-Washington Post investigation found that pro-Trump Facebook groups swelled with at least 10,000 posts a day before Jan. 6, with many calling for executions or other political violence. But Trump ignored the threats of violence by his more extreme supporters and encouraged people to come to the “Big Protest Rally in Washington, D.C.” on Jan. 6. The Poynter Institute’s Politifact compiled a list of seven tweets sent out by Trump between Dec. 26 and Jan. 3. Only one of them, a retweet, made a passing reference to “peaceful protests.”

Prior to Jan. 6, there were two Trump-endorsed rallies in the nation’s capital that were billed as the “Million MAGA March”—on Nov. 14 and Dec. 12—which included members of extreme right-wing hate groups such as the Proud Boys and Oath Keepers. On both occasions, Trump supporters clashed with counterprotesters as well as police, several police officers were injured, and dozens of people were arrested.

Authorities had grounds to deny permits for Jan. 6 rallies or insist that the main rally be held in a park far from downtown Washington. Instead, a permit was issued to Women for America First for a “Stop the Steal” rally on the Ellipse outside the White House. But the permit from the National Park Service did not authorize a march from the Ellipse.

Here’s what Democratic Del. Stacey Plaskett of the Virgin Islands said at Trump’s impeachment trial on Feb.10 regarding how Trump simply ignored the permit’s restrictions.

BuzzFeed News reported that the Capitol Police actually approved permits for five smaller rallies on Jan. 6, at points surrounding the Capitol—one permit was issued to a group that didn’t exist and the others went to what appeared to be proxy groups affiliated with Stop the Steal, a group led by right-wing activist Ali Alexander.

Trump covered his ass by using the word “peacefully” once in his closing speech at the Ellipse rally, while repeatedly saying there was a need to fight.

“We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them, because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

There was no cordon of police or National Guard deployed to block the marchers from making a beeline to the Capitol where they would join protesters who were already at rally sites around the Capitol. Instead, an email sent by White House Chief of Staff Mark Meadows said the National Guard would be present to “protect pro-Trump people,” and many more would be available on standby, according to the House select committee. They weren’t needed because counterprotesters didn’t show up.

At the House committee’s first hearing on July 27, four Capitol Police officers directly linked Trump’s words to the rioters’ violent actions.

“All of them—all of them—were telling us, ‘Trump sent us,’” Capitol Police Sgt. Aquilino A. Gonell told the House panel. And what was Trump doing at the time? He was watching the violence unfold instead of taking immediate action to stop the attack, ignoring pleas from his daughter Ivanka, Fox News hosts, and top aides.

As former White House Press Secretary Stephanie Grisham told CNN, ”All I know about that day is he was in the dining room, gleefully watching on his TV, as he often did. ‘Look at all of the people fighting for me,’ hitting rewind, watching it again. That’s what I know.”

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Back in 1968, thousands of people came to Chicago “to protest in the finest American tradition outside and in the vicinity of the convention,” defense attorney William Kunstler said in his opening statement in the Chicago Seven trial. The organizers called for people to march peacefully to the convention hall and proclaim their stance on the issues—primarily ending the Vietnam War, which was then at its peak, with more U.S. troops killed than in any other year.

“We are not going to storm the convention with tanks or mace,” David Dellinger said at a pre-convention press conference. “But we are going to storm the hearts and minds of the American people.”

And there’s another important distinction. Trump and other speakers at the Jan. 6 rally, like Rudy Giuliani and Rep. Mo Brooks of Alabama, riled up the crowd with calls to “fight” long before any violence broke out.

Most of the defendants’ remarks cited by the prosecution in the Chicago Seven trial were made after the police had brutally attacked protesters, when emotions were running high.

On Wednesday, Aug. 28, Rennie Davis was trying to bring the situation under control in Grant Park. He asked the police to pull back after a young man lowered a flag to half-staff; officers began beating people as they arrested him.

“That just set off the police and they came crashing in. As they approached me, I literally could hear police yelling, ‘Kill Davis!’ I was hit on the head and knocked to the ground. I was on the ground crawling with my two arms trying to get away and just being clubbed and clubbed and clubbed,” Davis said in an October 2020 interview with The Guardian ahead of the release of Sorkin’s film.

Davis required 13 stitches for his wounds. Cook County Hospital workers risked their jobs to hide him as police searched the hospital to arrest him. That night the whole world was watching as the worst violence of the convention week erupted as delegates at the convention nominated Vice President Hubert H. Humphrey as the Democratic presidential candidate.

And now for a slight confession: I actually managed to get inside the International Amphitheater on the final night of the convention, on Thursday, Aug. 29. I don’t know how many other protesters can claim that distinction.

I didn’t have a Viking helmet or a spear. Nor did I hit any police officers, or use bear spray to break through their lines. It was much less dramatic. I was “Clean for Gene”—without a beard or long hair.

I joined a march, led by McCarthy delegates, down Michigan Avenue toward the International Amphitheater, but a cordon of police and the National Guard blocked the march several miles from the convention site. Some protesters sat in the street and were maced and arrested while others retreated back to Grant Park. The wife of a Wisconsin McCarthy delegate said she was too distraught to attend the convention for the acceptance speeches and gave me her guest pass.

I promised to protest for her and rolled up a McCarthy poster that had a quote from Lincoln’s Gettysburg Address: “Government of the people, by the people, for the people, shall not perish from the earth.” I waited patiently until the acceptance speeches were about to begin. But as soon as I held up my poster, I was forced to leave the gallery by city workers packed into the guest section so they could show support for Mayor Daley.

I did get a consolation prize: As I was leaving the hall, I picked up a bunch of discarded “We Love Mayor Daley” placards. I proudly hung them over the toilet in the bathroom of my dorm room and  off-campus apartments for several years.