There’s a reason Fox News’ talking heads erupt in a collective freakout anytime it appears that Donald Trump might face real consequences for inciting an insurrection at the U.S. Capitol. Mainly, it’s because of their own massive culpability in having helped enable that event.

The news this week that the Justice Department is looking at potential criminal charges against Trump for his role in the Jan. 6 Capitol siege set off one of these staff-wide freakouts, with his apologists eagerly claiming that it was an attack on conservatives’ free speech. As usual, Tucker Carlson led the gaslight parade, but he was hardly alone.

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Carlson’s rant on Wednesday was both spittle-flecked and delusional:

Political speech is not a crime in America. It has never been a crime in America. Even if extremists use your words to justify their violence, you cannot be arrested for their deeds because we have a First Amendment. Political speech is sacrosanct, period. The Supreme Court has ruled on this many times. It’s at the very heart of our system. It is why this is a free country.

But in the single most radical move perhaps of the entire Biden administration, the attorney general, Merrick Garland has decided to change this. The Washington Post is reporting that the Justice Department is investigating former President Donald Trump as part of a criminal probe into January 6.

Now that may confuse you since Trump did not commit any act of violence on January 6. In fact, he publicly urged his voters to quote, “stay peaceful.” When they entered the Capitol building, he told them to go home. That’s all on public record. But according to Merrick Garland, Donald Trump is still liable for every single one of his supporters’ crimes that day. Donald Trump’s speech is violence. That’s the new rule. Your speech is violence.

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Similar complaints were heard in nearly every corner of the cable network’s programming. Host Laura Ingraham told her Ingraham Angle audience that the investigation was purely a matter of politics: “It begins to look like a political vendetta to prevent someone for running for office and succeeding and winning the presidency again to millions and millions of Americans,” she said.

She also claimed that Biden was politicizing the DOJ in the same fashion as Trump: “Now, Biden’s attorney general is doing exactly what they all warned about under Trump—he’s weaponizing the DOJ, despite his denials,” she said.

And despite the mountain of evidence demonstrating that Trump was working feverishly to overturn the results of the election and remain in office, she argued: “There’s no way [Garland] actually believes that, what? President Trump was conspiring to overthrow the government.”

Another host, ardent Trumpite Mark Levin, claimed that holding Trump accountable for his crimes—rather than the crimes themselves—would divide the nation: “The criminal prosecution of a former president of the United States—and the fatal damage that will do to the body politic, and the fatal damage it’ll do to polarization in this nation.”

Fox host Jesse Watters told the audience that it was just a psychological ploy by Democrats to bolster their 2022 election chances: “They don’t need evidence. Their goal is to scare you into submission. Watch Merrick Garland last night on NBC flirt with arresting Donald Trump right before the next election.”

Regular contributor Katie Pavlich, appearing on Watters’ show, warned that if Garland indicted Trump, “it would look really bad. It would look corrupt. I mean, the Department of Justice and the FBI have been politicized and used as a political weapon against Republicans for years on end now.”

Alternatively, Pavlich chimed in on Fox & Friends that it was just an election-year gambit: “At the same time, they’re, you know, going after the Trump administration, endless investigations. So, the corruption and the—the partnership between the FBI and the media to push this right before an election and to bury the truth really is the news here in this scandal.”

Wisconsin Senator Ron Johnson turned up on The Faulkner Focus to denounce the investigation. “It’s just an unequal application of justice, and that’s an unsustainable state of affairs when the American public can’t trust the FBI and our federal law enforcement and the Department of Justice,” he said.

Jonathan Turley, the onetime liberal legal commentator who converted into an ardent Trumpist, told the audience on Fox News’ America’s Newsroom program that the legal case against Trump was “unprecedented,” evidently unaware that Trump’s actions could be characterized the same way. Said Turley: “Merrick Garland would be taking a case that is unprecedented, not just against a president, but in terms of the underlying elements being used in this type of action.”

The reality is that American law has long held behavior like Trump’s to be criminal. It’s just that no previous president ever undertook anything even remotely like it.

For example, 18 U.S. Code § 2383 (“Rebellion or insurrection”) clearly states:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

University of California law professor James Wagstaffe, writing for Just Security, believes Trump’s behavior before, during, and after the insurrection clearly was criminal:

There is little doubt in my professorial view that such actions come within the ambit of the federal criminal statutes on sedition and incitement to riot.  As to sedition, the federal statutes make it a crime for anyone to incite or assist in any acts of insurrection against the authority of the United States, or to conspire to put down the government or hinder or delay the execution of any of its laws.

Similarly, as to inciting riots, it is a crime for someone to urge or instigate other persons to riot, excluding, of course, mere abstract advocacy of the right to commit such acts.  When, as here, incitement of such activities was perpetrated through telephone calls, interstate travel, or other interstate means, federal criminal liability follows. It may also follow directly from DC law, as the Attorney General of the District of Columbia recently remarked.

Let’s be clear: First Amendment protections have never been interpreted to prohibit punishment of expression that threatens to materially disrupt the safe functioning of government or incitement of others to commit acts of violence or other illegal acts.  If such speech is directed toward actually inciting such illegal conduct and the advised conduct is imminent or immediate, the speech can be punished.

It’s not that Fox News pundits are likely to face criminal charges for enabling Trump’s criminal behavior. But already, their already-dubious credibility is crumbling entirely under the weight of the factual exposures around Jan. 6 by investigators.

Sean Hannity’s long-running defense of Trump—claiming that he actually tried to call out the National Guard that day—has completely fallen apart, for instance. It turns out that acting Defense Secretary Christopher Miller—who had come onto Hannity’s program and claimed that Trump had commanded the Guard into Washington prior to the insurrection—in fact testified under oath to the Jan. 6 committee that there “was no order from the president” to call in the troops.

Fox News pundits already hold their own dark place in American history as monumental and pathological liars who enabled every step of Trump’s attack on U.S. democracy. Mark Meadows’ texts show them all lining up to urge Trump to call off the attack—and then, when he refused, taking to the airwaves to blame anyone—Antifa, Nancy Pelosi, “the left,” or any of their favorite scapegoats—who might be plausibly available.  

As Adam Serwer observes, this isn’t merely a case of lousy or biased reporting, the kind that Fox News regularly castigates its competitors for indulging. “Even errors of fact and framing, ideology or analysis, are different from what Fox News hosts do, which is attempt to get their viewers to believe things they themselves know are false,” he writes.

“Fox News understands that its success depends on maintaining a fantasy world, rather than doing anything to disturb it. This is why some of its most marquee personalities, who shared the same horror as most other Americans at the events of January 6, caked on their makeup, stared into the camera, and lied to the people who trust them the most. What makes Fox News unique is not that it is conservative, but that its on-air personalities understand that telling lies is their job.”

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