The Office determined that there were reasonable arguments to be made that Mr. Trump's Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court's standard for "incitement" under Brandenburg v. Ohio, particularly when the speech is viewed in the context of Mr. Trump's lengthy and deceitful voter-fraud narrative that came before it.
To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an "insurrection against the authority of the United States or the laws thereof," and then prove that Mr. Trump "incite[d]" or "assist[ed]" the insurrection.
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