Professor Jed Shugerman was quoted in a Talking Points Memo article discussing the effects of Cassidy Hutchinson’s testimony and the criminal case against Donald Trump.
Multiple legal commentators and former DOJ officials who had publicly stated, before [Cassidy Hutchinson’s testimony on Tuesday], that Trump’s activities did not meet the exacting legal standard for incitement have now changed their views.
“He is trying to bring in not just the guns, but the people with the guns, into the mob,” left-leaning Fordham Law Professor Shugerman told TPM. “It’s not a slam-dunk case yet, but up until yesterday, most of what we had was political speech.”
The difference for Shugerman, too, came with Trump’s alleged “take the f-ing mags away” remark.
“Those three sentences give you mens rea,” he added — the legal term for when a person has knowledge that they’re doing something that violates the law.
There’s still much that’s unknown about the episode including, as Shugerman pointed out, whether the Secret Service followed the order and let the armed men through.
Shugerman also believed before Hutchinson’s testimony that Trump hadn’t met the bar for a crime. But he said that after hearing Hutchinson’s testimony, he saw two elements of a criminal charge for incitement potentially met: intent, and a bad act.
“Some speech is performative, but if a president give an order to do something, that’s an order,” Shugerman said. “This is not just political speech anymore — an order to take away metal detectors is a concrete act.”