Trump's tweet calling out Mike Pence is 'not quite attempted murder' but incendiary messages like it can be used as evidence in charges, criminal law scholar says

• In outtakes from his public message on January 7, Trump did not want to say "the election is over."
• Trump hoped to avoid the word "peace" in his tweets, a former White House aide said.

Donald Trump's deliberation over his tweets and messages to Capitol rioters and supporters on January 6, 2021, could be used against the former president in criminal charges, as it suggests intent, a criminal law expert said.

On July 22, the January 6 panel revealed how Trump carefully formulated his messages to the public on the day of the riot. From the outtakes of two public statements showing the former president going off script and avoiding the phrase "the election is over" to his tweets, in which Trump accused former Vice President Mike Pence of not having "the courage" to overturn the election.

These examples "suggest a certain kind of intentionality" for a particular outcome, Robert Weisberg, a criminal law professor at Stanford University, told Insider.

"If he's being told to say, 'X,' and he says, 'I'm not gonna say that, I'm gonna say, 'Y.' That suggests that his decision not to act is motivated by a desire for the bad things to happen," Weisberg said, adding that refusing to say the election is over touches upon the idea of action through omission. "It certainly could be evidence in a criminal case."

Take the case of the incendiary tweet directed at Pence for not overturning the election. When rioters chanted "hang Mike Pence" previous testimony from Cassidy Hutchinson revealed that Trump responded that Pence deserved it.

In several witness testimonies, aides close to Trump revealed there was an urgent desire to send a forceful statement to the public that could only come from the President once rioters began to breach the Capitol.

Instead, Trump sent a tweet disparaging Pence for not having the courage to overturn the election, which Matthews described as "pouring gasoline on the fire" and giving a "green light" to his supporters.

"One can say that that statement at the time was an action taken, in which he knew damn well that that could exacerbate the risk of violence to Pence. We're not saying he intended to help assassinate Pence, but he knowingly took an incredibly reckless chance that those words would exacerbate the risk of death or harm to Pence and others," Weisberg said.

"You've got some potential criminal liability there. It's not quite attempted murder, but there are various legal doctrines, which could make him criminally culpable," he said. "Certainly a very extreme form of reckless endangerment of human life."

About 14 minutes after the Pence tweet, Trump sent a message to his supporters to support law enforcement and the Capitol Police and, finally, to "stay peaceful!"

Testimony from Matthews revealed that Trump originally did not want to use the word "peace" and had to be convinced by his daughter Ivanka Trump to add the last phrase.

Using the tweets as part of criminal evidence does come with the large hurdle of proving Trump's mental state at the time the statements were made, according to Weisberg.

"If we talk about the affirmative things that he did, as we learned in the earlier hearings to incite violent action or to encourage it after it got started, then you've got these issues about whether he acted with a certain culpable mental state and whether he actually played a causal role," Weisberg said.