First President Trump denied reality. Then he fanned the flames of insurrection. And on Wednesday, his speech actually broke the law, and he should be prosecuted for it.
Trump didn’t ask people to read between the lines; he was explicit: “[Y]ou’ll never take back our country with weakness. You have to show strength and you have to be strong…We’re going to walk down Pennsylvania Avenue, … and we’re going to the Capitol, … and we’re going to try [to] give our Republicans… the kind of pride and boldness that they need to take back our country.”
Speaking to a crowd about political views lies at the very heart of our democracy. But weaponizing that crowd, inciting them, directing them, and turning them into a weapon, that’s not democracy—that’s an attack on the democratic process. And when a person, even a president, crosses that line, the Constitution and case law are quite clear: they lose their usual First Amendment protections and commit a crime.
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The Supreme Court’s 1969 Brandenburg test, still in effect today, is named for a noxious Klan leader who was tried for his words at a 1964 Ohio KKK rally where speakers speculated about “revengeance’ against their enemies, talked about expelling Blacks and Jews from America and planned a march on Washington. The Supreme Court threw out his conviction for advocating violence, holding that his speech was awful, but not illegal. That’s because Brandenburg referenced the far-off possibility of violence, but no immediate crimes. The resulting test asks two questions: (1) is the speech directed to inciting or producing imminent lawless action, and (2) is the speech likely to incite or produce such action? In short, are you asking people to commit a crime they’re actually about to commit?
Unlike in Brandenburg’s case, there’s no ambiguity with Trump’s speech Wednesday that came after weeks of growing, manufactured anger at President-elect Biden’s victory. Taking to the lectern, Trump knew the seething anger of the crowd, he stoked it. He aimed them like a loaded weapon down Pennsylvania Avenue, unleashing them at the Capitol, Congress, and our democracy.
Of course, Trump was back and snug at the White House long before the marchers ever reached the Capitol, but his work was done. In the following hours, hundreds of protesters did just what he asked, trespassing on the Capitol, breaking into the building, and bringing Congress to a halt.
Clearly, not all of the crimes committed today can be pinned on Trump. But the trespassing itself, breaking into the Capitol, is exactly what he called for. And that’s a crime. Incitement to riot on its own could land Trump in prison for a decade. Trespassing at the Capitol is punishable by 10 years in prison as well, and there could be other charges for the destruction of property, injuring congressional staff, and more. And under Federal law, Trump could face jail time for any violent crimes he “solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in…”
If Trump had won a second term, the question would largely be moot. It would take a second impeachment and conviction by two-thirds of the Senate to bring him to justice. But in just two weeks, President Biden will take the oath of office, and Trump will be just another potential defendant, waiting to see what charges prosecutors might bring. Let’s hope they charge him swiftly.
