In Donald Trump’s political, media, and legal orbits, the former president and his Republican allies are coalescing around a new argument to fend off allegations that Trump incited the bloody Jan. 6 riot: Maxine Waters did it, too.
Since leaving office early this year, the ex-president—who soldiers on as the effective leader of the Republican Party—has been served with lawsuit after lawsuit over his role in instigating the mob violence at the U.S. Capitol. That riot led to Trump becoming the first president in American history to be impeached twice. But in numerous GOP circles still willing to defend him, Trump’s hands are, of course, clean—even though Waters’ aren’t. Or so they argue.
Waters, a 16-term Democratic congresswoman from California, ginned up a wave of conservative outrage when she urged protesters this month to “get more confrontational” in the event that a Minneapolis jury acquitted former police officer Derek Chauvin for the murder of George Floyd.
Almost immediately after her comment started making waves on right-wing media, the former president—now ensconced at his private Florida club, Mar-a-Lago—took notice.
Trump began rhetorically asking why he was getting so much criticism and inundated with lawsuits, when what Waters did was, in his apparent estimation, much worse, according to two people familiar with his private musings. Naturally, the ex-president wanted this to be made a prominent plank of political, legal, and messaging pushback against the sustained allegations that he’d incited a deadly riot, the sources recounted.
Reached on Tuesday evening, Trump’s attorney, Jesse Binnall, declined to comment.
Whether proponents of this argument have recently heard from Trump directly or not, the retort has indeed gained plenty of steam among conservative and MAGA luminaries. The argument, however, has not impressed everyone.
“It’s a political argument, not a legal one,” Ken White, a First Amendment attorney and former federal prosecutor, said on Tuesday. “There’s no legal doctrine to quote. There’s no ‘You Did Something Like It, And Therefore It’s Fine’ doctrine that I’m aware of.”
White continued that it was something a lawyer might use to attack Waters’ credibility as a witness or a plaintiff. “But the fact that one of the plaintiffs did something similar, and leaving aside whether it actually was similar, isn’t a legal defense, or something that would be a barrier to them moving forward with the lawsuit,” he continued. “It’s spin. It’s a truculent, crowd-pleasing argument.”
During a protest at Brooklyn Center in Minnesota earlier this month, Waters declared that activists needed to stay on the street. “We’ve got to get more active, we’ve got to get more confrontational, we’ve got to make sure that they know that we mean business,” she said.
The comments followed days of protests and unrest in the city and dozens of arrests on riot-related charges after a police officer shot and killed 20-year-old Daunte Wright, in what law enforcement there claimed was an “accidental” shooting.
Judge Peter Cahill, who presided over the Chauvin trial, called Waters’ comments “disrespectful to the rule of law and to the judicial branch and our function” and even suggested that the remarks could be grounds for an appeal.
But the attempt to excuse Trump’s behavior with comments from Maxine Waters is nothing new. During Trump’s impeachment trial in February 2021, Republicans used clips of Waters objecting to the 2016 Electoral College results and pledging to impeach Trump shortly after his election as evidence that Trump’s rhetoric on and before Jan. 6 was old hat. (Republicans ignored the key difference that Waters’ recent comments didn’t precipitate a riot.)
More recently, Jonathan Turley—a George Washington University law professor close to Trumpworld—wrote an opinion piece for Fox News predicting that Waters comments “could well be cited in the ongoing litigation over the Jan. 6 riot on Capitol Hill.” Last week, Fox News primetime host and on-and-off Trump adviser Tucker Carlson asked whether Maxine Waters was “guilty of greater incitement than Donald Trump?”
“Well, of course!” Carlson answered, to his own question. “But that's not the point. People like Maxine Waters don't care if you point out that they're hypocrites.”
House Minority Whip Steve Scalise (R-LA) also linked Waters' comments to the allegations that Trump incited the Capitol riots on Jan. 6. "President Trump used the words ‘peaceful’ when he talked about the statements that he made. I haven’t heard Maxine saying anything about peacefully protesting," Scalise said.
Former New York City mayor and Trump lawyer Rudy Giuliani tweeted that Waters “did exactly what Donald J. Trump did not do” and accused Waters of making a “deliberate call for violence and a direct threat to the jury, if she and the mob do not approve the verdict.”
And the Republican House Minority Leader Kevin McCarthy has similarly tried to capitalize on Waters’ comments. He recently introduced a censure resolution against the California Democrat, which the House swiftly voted down on partisan lines. And in an interview with Punchbowl News this week, he warned that Democrats were going to have to run in new districts next year and “explain why they're condoning the language of Maxine Waters.”
In February, Rep. Bennie Thompson (D-MS) sued the former president, alleging that Trump’s rhetoric about the election amounted to a conspiracy to deprive Americans of their civil rights. In court filings, Thompson’s attorneys allege that Trump and Giuliani knowingly incited the far-right Proud Boys and Oath Keepers to storm the Capitol and disrupt Congress’ certification of President Biden’s electoral college victory.
Waters signed onto the NAACP-filed suit from Thompson as a plaintiff, along with nine additional Democratic House members in early April. And in an amended complaint filed in the case, the California Democrat revealed she was forced to barricade herself in her office on Jan. 6.
“Since the riot, Rep. Waters has had increased worries about her safety, and has felt compelled to increase the amount of security personnel with whom she travels to and from her home,” the complaint said.