Abstract
The second impeachment trial of Donald J. Trump provides a useful test case for exploring law’s tacit dimension – a domain in which thinking in pictures and sounds remains largely hidden (or disguised) and thus protected from the deliberative work of critical reason. The impeachment team’s failure to refer to the January 6 rally video suggests an insufficient understanding of how, and with what predictable impact, Trump’s video helped to incite his supporters to violent insurrection at the nation’s capital. Lawyers, judges, and lay jurors alike can ill-afford to ignore the implications of such a massive blind spot when it comes to the strategic composition and critical assessment of such a pervasive form of communication in contemporary society. If trial lawyers cannot identify how jurors are being tacitly persuaded on the screen, they will be unable to properly test the sounds and images their opponents rely on in court. This is how the adversarial quest for truth and justice breaks down. As spectacle and critical reason contend for dominance in late modern culture an insistent question echoes: will the craft of reason overcome the wild impulses of spectacle in our time? The fate of liberal democracy hinges on our response.
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Notes
See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”). Brandeis might have had Thomas Jefferson’s words in mind: “[T]o preserve the freedom of the human mind… [and]freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will and speak as we think, the condition of man will proceed in improvement.” The Papers of Thomas Jefferson, To William Green Munford (2004), https://jeffersonpapers.princeton.edu/selected-documents/william-g-munford [https://perma.cc/RQJ2-66XR].
See Red Lion Broadcasting Co. v. FCC, 395 U.S. 357, 390 (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market.” [21; 16: 543-44 (“[B]ecause the Constitution depends on informed and active members to make the democracy it establishes work, the Constitution should compel development of the institutional context for democratic self-governance…”)].
See Robert Paxton [18] (noting that fascism appeals to the emotions by the use of ritual, carefully stage-managed ceremonies, and intensely charged rhetoric so that “will and action become virtues in themselves.”) As Shoshana Zuboff notes, a serious illiberal threat to democracy today arises from pervasive social media’s massive commodification of the means and goals of communication [39].
Notably, while the critical capacity to distinguish reason from unreason in legal and political discourse is vital to liberal democracy, that capacity ultimately may not be the most crucial or primary factor distinguishing liberal from illiberal societies. On a more foundational level, even greater importance attaches to the collective’s willing acceptance of uncertainty and the perennial risk of error [7, 26, 38]. That risk is what propels critical thinking, in the crucible of reasoned deliberation, to examine every experience, feeling, and thought, publicly proffered as a reliable basis for state-backed truth or value. To enter that fray – insisting upon the crucible of contested truths and values as the best available means of attaining justice – requires a shared commitment to openness and humility. Attending to what others think and feel and believe assumes that one’s own feelings, knowledge, and beliefs may stand in need of correction. Liberal democracy is the fruit of critical reason in precisely this respect: it aspires to, and depends on, a good faith search, under conditions of uncertainty, for what is true and just. Along the way, liberal democracy’s core virtues emerge: (1) empathy (for others might know something I do not), (2) tolerance (in that a good faith search for truth/justice requires humility and openness), and (3) the ability to reason together (in a dialogic exchange regarding all that remains contested).
Oliver Wendell Holmes said it best: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” [10:1].
Law’s bias against the visual has often been noted. See, for example, Porter [20:1691] (“Lawyers and courts routinely confront visual questions, such as whether the government must release photographs and videotapes documenting abuse of detainees in Guantanamo Bay; whether the state can ban cross-burning; and what restrictions a state may place on the display of gruesome abortion photos outside an abortion clinic. But courts, scholars, and practitioners analyze such image-centered disputes within a tradition-bound framework—a framework in which the alleged objectivity of text literally papers over the emotion-laden visual subjects in dispute. Images are associated with emotion and irrationality. Written law resists that irrationality by subjecting the photos, the flame, and the fetus to a unifying, detached, linear, black-and-white medium of analysis. For the most part, Lady Justice has remained blind.”).
See “2001 United States Capitol Attack,” https://en.wikipedia.org/wiki/2021_United_States_Capitol_attack.
The intelligence arm of the Capitol Police had reported on December 21, 2021, that armed militia groups were preparing for violence at the Capitol on January 6). Leaders and members of ultra-right militia groups were known to be “sharing tactics and techniques for attacking the Capitol” and were telling their pro-Trump colleagues that they should come prepared for violence (“Bring guns. It’s now or never.” “Time to stack bodies in front of Capitol Hill.” “Surround every building… [Congressmen] better dig a tunnel all the way to China if they want to escape.”) https://www.dailykos.com/stories/2021/6/8/2034315/--Surround-every-building-with-a-tunnel-They-better-dig-a-tunnel-all-the-way-to-China-to-Escape.
Trump’s first impeachment in the Senate took place on December 18, 2019, on abuse of power and obstruction of justice grounds. Trump was acquitted of those charges on February 5, 2020. https://en.wikipedia.org/wiki/First_impeachment_of_Donald_Trump.
For the sake of argument here, I am assuming President Trump knew and approved the content of the video that was shown on Jan. 6. There is substantial evidence to support this. For example, the New York Times has reported that by early January “the rally would now effectively become a White House production” and, with his eye ever on media production, Trump micromanaged the details. “The president discussed the speaking lineup, as well as the music to be played, according to a person with direct knowledge of the conversations. For Mr. Trump, the rally was to be the percussion line in the symphony of subversion he was composing from the Oval Office.” https://www.nytimes.com/2021/01/31/us/trump-election-lie.html.
Sometimes, codes for interpretation are provided. For example, consider Hobbes’s graphic frontispiece in Leviathan [38]. Other times, there may be a preference to keep the tacit elements we think and feel with hidden or disguised. The authoritarian culture of spectacle, not the ideals of liberal democracy, favor mystification over understanding and informed debate [29].
I distinguish manipulation from persuasion based on the former’s exclusive reliance upon unconscious processes, as opposed to the latter’s reliance upon reflective deliberation. To be sure, the distinction is never clean – persuasion typically operates on multiple levels of cognition and emotional efficacy. However, to the extent that there is a concerted effort to mask or bypass altogether deliberative or reason-based judgment, cutting off action from conscious reflection, manipulation becomes the appropriate signifier [25, 28, 30, 39].
Joseph Biden already had been certified the winner of the Presidential election by a vote of 306 to 232 electors.
“RESOLUTION: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors. Resolved, That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:
ARTICLE I: INCITEMENT OF INSURRECTION The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States […] Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States, in that: On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide.”.
He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.” https://www.congress.gov/bill/117th-congress/house-resolution/24/text.
Trump addressed his supporters from approximately noon – 1:00 pm. At 1:00 pm, an initial wave of protesters stormed the outer police barrier around the Capitol. https://www.npr.org/2022/01/05/1069977469/a-timeline-of-how-the-jan-6-attack-unfolded-including-who-said-what-and-when.
See note 9, supra; see also https://www.nytimes.com/2021/01/31/us/trump-election-lie.html]; https://whyevolutionistrue.com/2021/02/04/an-analysis-of-the-trump-movie-shown-at-the-capitol-rally-an-exercise-in-fascism/; and https://ktla.com/news/nationworld/members-of-trumps-failed-reelection-campaign-behind-rally-that-ignited-capitol-riot/.
Numerous leaders and followers of various white supremacist groups – such as ‘The Proud Boys’ and ‘The Oath Keepers’ – have subsequently admitted in court that they understood the purpose of the rally in Washington on Jan. 6 was to unlawfully stop the certification of the electoral college vote. See, e.g., https://www.washingtonpost.com/dc-md-va/2022/04/08/donohoe-pleads-guilty-proud-boys-jan6/.
John C. Eastman, an American law professor working with the legal team of former President Trump, devised an illegal plan to overturn the 2020 United States election of Joe Biden and get Trump re-elected by throwing out electors from seven states. Eastman’s memos to this effect have been described as an instruction manual for a coup d'état. https://en.wikipedia.org/wiki/Eastman_memos. Numerous Trump operatives, including his advisor, Donald Trump Jr., contrived to advance Eastman’s strategy to defy the federal Constitution and, by extension, nullify the rule of law. https://www.cnn.com/2022/04/08/politics/donald-trump-jr-meadows-text/index.html.
See note 14, supra.
See note 14, supra.
Individuals convicted of a conspiracy to overthrow the government could face up to 20 years in prison. See, 18 U.S. Code § 2383—Rebellion or insurrection (prohibiting any “seditious conspiracy” to “overthrow, put down, or to destroy by force the Government of the United States” or to “by force to prevent, hinder, or delay the execution of any law of the United States.”) https://www.vox.com/22217973/13-federal-criminal-laws-trump-mob-insurrection-capitol-assault-rebellion-conspiracy.
Consider, for example, the courts’ disparate treatment of labeling visual evidence. Compare People v. Anderson, 2017 NY slip op 02,589 with State v. Walter, 479 S.W.3d 118 (2016) and Watters v. State 313 P.3d 243 (2013) (booking photos overlaid with the word guilty). See generally Matthew Robertson, Guilty as Photoshopped, 55 WASHBURN L. J. 731 (2015–2016).
Of course, there are occasions when emotional responses to vivid images may be highly cogent. Consider, for example, Justice Kennedy’s use in Brown v Plata 563 U.S. 493 2011 of a stark photograph of prisoners held in metal cages, or the controversial use of highly graphic images on cigarette packages to warn consumers of the consequences of smoking. The fact that courts sometimes treat emotional responses to visual displays as non-cognitive and thus perhaps less worthy of state protection illustrates a persistent confusion regarding the cognitive import of emotions. [35: 2425] (“Because emotion and reason are inextricable, emotional appeals should be fair game for the government as well as for private parties, unless the emotion is tied to factual deception.”).
See generally http://www.visualpersuasionproject.com/.
As Leonard Mlodinow notes (17:158–59), studies show that “people’s attributions of guilt and recommendations of punishment are subliminally influenced by the looks of the defendant,” but bias recedes in longer trials for more serious criminal charges. See also In re Glasmann, 286 P.3d 673, 679 (2012) (“Highly prejudicial images may sway a jury in ways that words cannot.”).
Consider, for example, in this regard feature films like The Blair Witch Project (1999) and its progeny which amplify the feel of reality by esthetically emulating amateur videos [8].
See Aristotle, On Rhetoric. 1991 [335–322 BCE]. New York: Oxford University Press, 297-98.
Polanyi compares this to “muscle memory” [19].
The video in question can be found here: https://www.youtube.com/watch?v=ht20eDYmLXU. For a comparable visual exegesis, see Jason Stanley’s analysis at: https://www.justsecurity.org/74504/movie-at-the-ellipse-a-study-in-fascist-propaganda/.
As Edmund Burke noted: “There is a sacred veil to be drawn over the beginnings of all governments.” [3: vol. 9, at 401]. https://books.google.com/books/about/The_Works_of_the_Right_Honorable_Edmund.html?id=5OA1AAAAMAAJ
In the clip chosen for the video, a flash of forked lightning very briefly appears on the top left of the image, amplifying a general sense of foreboding that something ominous is afoot.
Shortly after the Jan. 6 rally video played, Alex Jones, the pro-Trump host of popular right-wing conspiracy-theory-driven media outlets such as “Infowars” and “The Alex Jones Show,” led a group of Trump supporters heading toward the Capitol building in a chant decrying “globalists”. https://www.nytimes.com/2022/04/20/us/politics/alex-jones-jan-6-interview.html
The Kente cloth might also evoke the Jewish tallis or prayer shawl:
The despairing nature of these lyrics was poignantly underscored when quoted by teenaged Charles Andrew Williams in a letter to his father written in an attempt to explain why he shot and killed two of his classmates in 2001. https://en-academic.com/dic.nsf/enwiki/2613702.
The song was certified platinum in the United States and Italy and charted in approximately 20 countries. As of December 2021, the music video surpassed 1.3 billion views on YouTube. https://en.wikipedia.org/wiki/In_the_End.
Polanyi uses the term “disattending” to describe the way in which attention may be directed away from a tacit source of knowledge [19:10].
Numerous Jan. 6 insurrectionists have asserted the so-called “public authority defense” – arguing in court that they could not be blamed for their violent actions because they were following executive orders. As Dustin Thompson put it: “If the president’s giving you almost an order to do something I felt obligated to do it.” https://www.nytimes.com/2022/04/13/us/politics/jan-6-suspect-trump.html?referringSource=articleShare.
On 8 June 2017, former FBI director James Comey appeared before a hearing of the U.S. Senate Intelligence Committee to provide “texture and context” regarding his interactions with President Donald Trump. About an hour and 40 min into proceedings, the following exchange occurred between Comey and Sen. Angus King:
King: “When a president of the United States in the Oval office says something like ‘I hope’ or ‘I suggest’ or ‘Would you?’, do you take that as a directive?”.
Comey: “Yes. Yes. It rings in my ears as kind of ‘Will no one rid me of this meddlesome priest?’”.
King: “I was just going to quote that! In 1170 December 29 Henry II said: ‘Who will rid me of this meddlesome priest?’ and the next day he was killed, Thomas à Becket, that is exactly the same situation.” https://www.historyextra.com/period/medieval/will-no-one-rid-me-of-this-meddlesome-priest-truth-henry-ii-quote/.
Notably, once the speech and the video have been characterized as having incited lawless action they no longer qualify as protected speech under the First Amendment. In 1969, the U.S. Supreme Court articulated what must be proved in order to remove certain speech acts from First Amendment protection [4]. To that end, the Brandenburg test requires proof that: (1) the speaker subjectively intended incitement; (2) in context, the words [or images] used were likely to produce imminent, lawless action; and (3) the words [or images] used by the speaker objectively encouraged and urged and provoked imminent action.”.
It warrants noting that enargeia, in the context of constructivist moral thinking [9], or what I refer to as digital or neo-baroque discourse [29], enters the domain of the hyperreal. Here, images copy images ad infinitum. Absent an original, it’s copies all the way down. In this respect, what may have begun as a theoretical construct (see, e.g., Jean Baudrillard, Simulacra and Simulation [Ann Arbor: University of Michigan Press, 1994]) before long becomes an instruction manual for authoritarian control over the perception of reality. Vladimir Putin’s adoption of the philosophy of Ilych Dugin and other far right theorists who substitute mythic narratives for fact-based reality offers a woeful case in point. See historian Timothy Snyder at https://www.youtube.com/watch?v=s31VFwO-6u0.
Three recurrent factors, long associated with tacit cognitive and cultural triggers for action, are present here:
(1) a context in which implicitly coded words/images may be used to amplify pre-existing fears or resentments; (2) a source of authority sufficient to motivate particular actors to violence; and (3) the exploitation of tropes of ‘Otherness’ that fuel an ‘us/them’ ‘friend/enemy’ animus (“We will not let them silence your voices”) [33].
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Sherwin, R.K. Law’s Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump. Int J Semiot Law 36, 129–157 (2023). https://doi.org/10.1007/s11196-022-09909-2
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DOI: https://doi.org/10.1007/s11196-022-09909-2