Trial by Combat: Rudy Giuliani's Incitement at the January 6 Rally as Trump's Personal Attorney Acting at His Direction
Tier 3Documented2021-01-06 to 2023-08-14
Factual Summary
On January 6, 2021, Rudy Giuliani, serving as Donald Trump's personal attorney, spoke at the "Save America" rally at the Ellipse near the White House before a crowd of thousands of Trump supporters. During his speech, Giuliani made the following statement: "Let's have trial by combat." The remark came in the context of Giuliani's extended claims about election fraud, during which he asserted that he was willing to stake his reputation, and that the president was willing to stake his, on the existence of widespread criminality in the 2020 election.
Giuliani's speech was part of a broader rally program that included remarks from multiple speakers before Trump himself took the stage. The rally was organized by the Trump campaign and allied organizations. Giuliani's role as Trump's personal attorney placed him in a unique position: he was not merely a supporter expressing personal views at an independent event but the legal representative of the president, speaking at an event organized to advance the president's stated objective of pressuring Congress to reject the Electoral College certification of Joe Biden's victory.
Approximately one hour after Giuliani's speech, and following Trump's own address in which he told the crowd to "walk down to the Capitol" and "fight like hell," a mob breached the U.S. Capitol building, interrupting the joint session of Congress that was certifying the 2020 presidential election results. Five people died in connection with the violence, and approximately 140 law enforcement officers were injured.
Giuliani later claimed that his "trial by combat" remark was a reference to the television series "Game of Thrones" and that no "reasonable person" would have interpreted it as a literal call to violence. In a court filing responding to a lawsuit brought by Representative Eric Swalwell, Giuliani described his words as "hyperbolic."
The New York State Bar Association announced on January 11, 2021, that it had opened an investigation into Giuliani's conduct, stating that his words "quite clearly were intended to encourage Trump supporters unhappy with the election's outcome to take matters into their own hands." On July 8, 2021, Giuliani's law license was suspended in New York based on a finding that he had made "demonstrably false and misleading statements" about the 2020 election. On August 14, 2023, Giuliani was named as one of 18 co-defendants alongside Trump in the Fulton County, Georgia racketeering indictment related to efforts to overturn the 2020 election results.
The January 6 Committee's final report documented Giuliani's role as a principal architect of the legal strategy to challenge the election results and identified his rally speech as part of the broader pattern of conduct that culminated in the Capitol breach. Trump's own second impeachment by the House of Representatives, on January 13, 2021, charged him with "incitement of insurrection" and cited the rally as the proximate cause of the violence, though Giuliani's specific remarks were not individually enumerated in the single article of impeachment.
Primary Sources
1. Rudy Giuliani, speech at the "Save America" rally, January 6, 2021 (full transcript published by Rev.com)
2. House Select Committee to Investigate the January 6th Attack on the United States Capitol, Final Report, December 2022
3. Article of Impeachment, H.Res. 24, "Incitement of Insurrection," January 13, 2021
4. Swalwell v. Trump, Giuliani, et al., civil complaint, U.S. District Court for the District of Columbia, March 2021
Corroborating Sources
1. Snopes: "Did Rudy Giuliani Call for 'Trial by Combat' Before Trump Mob Broke Into Capitol?" (rated True)
2. CNN: "Rudy Giuliani, who urged Trump supporters to have 'trial by combat,' says he wasn't literally calling for insurrection," May 18, 2021
3. Salon: "Rudy Giuliani called for 'trial by combat' and then chaos descended on Capitol Hill," January 6, 2021
4. ABC News: "Rudy Giuliani being investigated by New York State Bar Association," January 11, 2021
5. Deadline: "Rudy Giuliani Says 'Trial by Combat' Remark Was 'Game of Thrones' Reference," January 2021
6. Newsweek: "Rudy Giuliani Says No 'Reasonable Person' Would Think 'Trial by Combat' Called for Capitol Riot," 2021
Counterarguments and Context
Giuliani argued that his remarks were rhetorical and metaphorical, not a literal call to violence. His defense characterized the "trial by combat" language as a pop culture reference, not a directive. Legal experts noted that incitement law under Brandenburg v. Ohio requires that speech be "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action," a high legal bar. Giuliani's attorneys argued that his speech did not meet this standard and was protected by the First Amendment. Trump's defense during his second impeachment trial similarly argued that the rally speeches were protected political speech. However, the "trial by combat" remark was delivered to a crowd that had been told for weeks that the election was being stolen, that democratic processes had failed, and that extraordinary action was necessary. The remark was made less than two hours before many members of that same audience violently breached the Capitol. The New York State Bar's finding that Giuliani's words were "intended to encourage Trump supporters to take matters into their own hands" was a professional determination based on the context, timing, and audience of the speech. Giuliani was acting in his capacity as Trump's personal attorney, not as a private citizen expressing an independent opinion. This relationship makes his statements attributable to Trump's broader effort to prevent the certification of the election.
Author's Note
This entry is classified as Tier 3 because Giuliani's speech is documented through primary evidence, including the full transcript and video recording. His role as Trump's personal attorney is not disputed. The characterization of his remarks as incitement involves a legal and interpretive judgment that has been contested in court proceedings, professional bar investigations, and the criminal indictment in Georgia, but has not been resolved through a final criminal conviction on incitement charges specifically related to the January 6 rally speech.