Incitement: Is the President Guilty of Inciting the Riot?

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It seems like everyone commenting here decided to not watch the video lol.

TL;DW: It’ll be difficult to find him guilty for the CRIME of Inciting Violence. However he’s probably still going to be impeached. The end.

👍︎︎ 27 👤︎︎ u/BrazilianRider 📅︎︎ Jan 13 2021 🗫︎ replies

Lol trumpers mad 🤡🤡🤡🤡🤡

👍︎︎ 37 👤︎︎ u/PierreDeuxPistolets 📅︎︎ Jan 13 2021 🗫︎ replies

Donald J. Trump needs to be convicted and locked up in prison

👍︎︎ 42 👤︎︎ u/Isaaclai06 📅︎︎ Jan 13 2021 🗫︎ replies

How is this even a question for debate? O_o?

He's on tape over and over and over again perpetuating a known and provable fiction of his own invention that the election was "rigged" then he sent his frenzied cult down to the capital to terrorize and prevent the legitimate certification of that win. Its open shut case and in any other country Trump would already be sitting in a concrete cell.

👍︎︎ 15 👤︎︎ u/pomod 📅︎︎ Jan 13 2021 🗫︎ replies

Yes Trump should be charged with what he did because he purposely used language to rile up those that follow him. All you have to do is listen to what he says and how he says it.

👍︎︎ 7 👤︎︎ u/rayvin925 📅︎︎ Jan 13 2021 🗫︎ replies

Simple answer is yes, the guy and those enabling what he's done should be locked up.

👍︎︎ 2 👤︎︎ u/Drayger83 📅︎︎ Jan 13 2021 🗫︎ replies
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- By now we've all seen what happened at the Capitol riots on January 6th. And we now have a pretty good idea of what precipitated those events. The house is moving forward with impeachment and the articles of impeachment are likely to pass. Though, at this point it's unclear at what point the Senate will take up the articles of impeachment and actually try the President. And that could last well into President elect Biden's first term. But what we do know is that based on the drafts of the impeachment articles that we've already seen it looks like article number one we'll be charging President Trump with incitement to riot. Now incitement to riot is an actual crime. But it also has a colloquial meaning as well. So the question is, is President Trump guilty of an incitement to riot? (upbeat music) Hey LegalEagles, it's time to think like a First Amendment lawyer. Because President Trump is facing serious allegations. Specifically with respect to incitement to starting or fomenting a riot. Now incitement has several different meanings. Incitement is actually a limit on free speech. It's something that it's not protected by the First Amendment. And incitement is also an actual crime, generally codified in every state in the country and in a federal law and the district of Columbia. And those criminal laws tend to hew pretty closely to the constitutional limit as defined by the Supreme court. And of course, incitement is also a moral judgment that is apart from both its constitutional and criminal meaning. But let's take a step back because when most people talk about incitement they're talking about its basis in First Amendment law. And as you probably know, the First Amendment protections extend to individual and collective speech as one court put it, that are in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. The Supreme court interpreting the First Amendment generally protects free speech unless it falls within one of a few narrow categories of unprotected speech. Things that we define as true threats or sometimes incitement. The court applies different levels of scrutiny to different kinds of speech. And when the speeches of a political and ideological nature the court considers it to be a core of the First Amendment. You can imagine that arguably political speech receives the most protections and the most benefit of the doubt when you're analyzing it under the First Amendment. And political speech almost always receive the highest level of scrutiny by the courts. In other words, the court is almost always trying to bend over backwards to protect political speech. So what is incitement? This category of speech that is not protected. Well in the landmark case of Brandenburg versus Ohio, the Supreme court held that the First Amendment protects speakers who advocate the use of force or violating the law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. That's the key test. The defendant in that case was Clarence Brandenburg who addressed a gathering of Ku Klux Klan members in a field in Hamilton County, Ohio in 1969. A journalist recorded Brandenburg saying that he was concerned the federal government was going to suppress the White Caucasian race. He made derogatory statements against black people and Jewish people. He said that the Klan may need to get quote Revengeance on the federal government if it continued doing things that he viewed as racist against white people. And Brandenburg said that Klan members were preparing a march on Washington DC for July 4th. Police arrested Brandenburg for violating an Ohio law which made it a crime to quote advocate the duty, necessity or propriety of crime, sabotage or unlawful methods of terrorism as a means of accomplishing industrial or political reform. And he was convicted at the trial court level. Well, Brandenburg fought his conviction all the way to the Supreme court where he argued that the Ohio law was unconstitutional. At the time of Brandenburg conviction, the court had been using the clear and present danger test to determine when speech constituted incitement. The Supreme court unanimously actually overturned Brandenburg's conviction and issued a new test for all future restrictions of speech on the basis of incitement. And that test is what we just talked about. It's the Imminent Danger Test. In other words the Imminent Danger Test is speech that's advocating violence and can only be punished where quote such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. And in that case, according to the Supreme court, Brandenburg speech did not invite his followers to do anything except march on Washington DC at a later date. Which you can imagine is generally protected speech. Now the Supreme court continued to develop the imminent lawless action test in a case called Hess versus Indiana, where it overturned the conviction of an anti-war demonstrator in Bloomington Indiana. There the defendant Gregory Hess stood on a curve and yelled, "We'll take the street again or later." Now I'm not going to bleep that out because that is the speech that's involved. And you can't understand these cases unless you know what's actually at issue in these cases. But the court said that Hess's speech could reasonably be construed in a number of different ways. Maybe he was advocating illegal activity later but certainly not imminently. Or maybe he was trying to tell the crowd to stand down. In either case, his arrest infringed on his First Amendment right to speak his mind. Now the Brandenburg test was also not satisfied in a 1982 case involving the NAACP's practice of writing down the names of people who violated boycotts of certain white businesses. The organization would read the names of the people who broke the boycotts aloud at meetings. And although one of their members said that, "If we catch any of you going in any of them racist stores, "we're going to break your damn neck." The court held that the statement was not a direct threat or an incitement to violence. In that case, there was no evidence that the man quote, authorized, ratified or directly threatened the acts of violence. Now, although there haven't been a whole lot of other incitement cases, a 2015 case bears mentioning. In Bible Believers versus Wayne County a divided full the handle of the Sixth Circuit which is one step below the Supreme court ruled that Wayne County, Michigan officials violated the First Amendment rights of a Christian evangelical group when they removed them from an Arab festival. The police removed the group to protect them from an audience that was hostile to the group's views. The Christian group made statements like, Islam is a religion of blood and murder or turn or burn, or your profit is a pedophile. The evangelical Christians walked through the angry crowd and although they were the ones being assaulted, the cops kicked them out. Punishing them for their speech rather than punishing the crowd for breaking the law. Now, this case was about whether the First Amendment protected unpopular speech. And it clearly does. But it also touched briefly on the incitement doctrine. The court emphasized the quote, "The hostile reaction of a crowd "does not transform protected speech into incitement." This is what is often referred to as a heckler's veto. And here the words that the speaker said weren't advocating violence or crime, they were expressing an opinion that another religion was violent. And while potentially offensive, this was still considered protected speech. - And we're not here to cause a problem, it's just, when we talk about Jesus, this is what happens. And in a different case, the Sixth Circuit relied heavily on the Bible Believers case when they had to assess Trump's culpability for assaults that happened at one of his rallies. Oh, what's that, President Trump was accused of incitement before? Yes, he was. If you thought the Capitol riots were an isolated incident you haven't been paying attention. What happened is Donald Trump was actually sued in 2016 for starting a riot. On the election trail in 2016, he held a rally in Louisville. The rally was organized by his campaign. And during that rally, then candidate Trump said five times to have protestors removed. - Get him the hell out, get him out. Don't hurt him. - In response, members of the audience assaulted, pushed and shoved these people. A Trump supporter punched one of them in the stomach. Two other Trump's supporters participated in assaults and the victims sued the perpetrators, and they also sued President Trump for inciting a riot at his campaign event. Now Kentucky Law makes it a misdemeanor to incite a riot. "A person is guilty of inciting to riot "when he incites or urges five or more persons "to create or engage in a riot. "Riot is defined as a public disturbance "involving an assemblage of five or more persons, "which by tumultuous and violent conduct "creates grave danger of damage "or injury to property or persons." Now on appeal, the Sixth Circuit Court of Appeals ruled that Donald Trump did not incite a riot by his words. Trump wasn't telling everyone to commit a crime, why? Because the court reasoned, he followed his statement with get him out of here, but don't hurt him. - Don't hurt him. - So you could assume that he meant that the protestors should be ejected but not that the tumultuous or violent conduct should be used to eject them and hurt them. Though you can see how highly context dependent this is. This could also have been interpreted as a rhetorical hypothesis or antiphrasis where by raising the issue, even in the negative he's actually implying the positive to hurt the bystanders and the protestors. Now the Brandenburg standard is closely tracked by the Kentucky statute. However, the court held that even if President Trump's conduct incited a riot under Kentucky Law, the First Amendment would bar the claim. And that's because for speech to be outside of the protection of the First Amendment it has to actually encourage violence or lawlessness. But like the Ohio Klan's men case, the court found that Trump's speech did not encourage violence or lawlessness, even implicitly. The court distinguished between speech that tends to encourage violence generally and speech that advocated for listeners to take specific unlawful action. And here the court cited the Hess and Bible Believers cases to make their point. Hess told his audience what he intended to do, but he didn't advocate for them to do anything. And in the Bible Believers case, they were expressing their belief about the Islamic religion, but that didn't necessarily give the listeners the right to break the law because they were mad about it. And under First Amendment law, words generally can't be punished simply because they tend to evoke a certain response in the listener. So with that in mind, let's look at what President Trump actually said on January 6th, right before the Capitol riots. Knowing what we now know about incitement and the Brandenburg test let's apply it to President Trump's speech. President Trump used the word fight more than 20 times during his rally speech on January 6th. Was that incitement? Well, the first question is what did he mean by fight? Did he mean the crowd should actually fight? Or was it a metaphor that they need to fight things in the abstract? Consider the statement. - And we fight, we fight like hell, and if you don't fight like hell you're not gonna have a country anymore. - This sounds scary in light of what eventually happened. The storming of the Capitol that left at least five people dead. But he also doesn't say punch people or break windows or fight the police specifically or even fight Democrats specifically. He never even said anything like he did in Kentucky back in 2016, get him out of here. Instead, he says. - We're gonna walk down to the Capitol. (crowd applauding) And we're gonna cheer on our brave senators and congressmen and women. - Here again, President Trump doesn't tell the audience to do anything but fight and cheer, which can be taken in multiple directions. In the democracy, in the context of an election campaign, it's pretty easy to view this as fighting to get elected and not giving up. Regardless of what you think of whether the election in 2020 was run perfectly well, or if it was fraught with fraud, you can imagine that this is sort of an abstract statement about what he wants to be accomplished. And here the Congress was actually meeting to finalize the election results. But what about this other phrase? - We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. - It doesn't seem like he's advocating for specific violence or trying to encourage specific people to break the law. At least not based on the explicit text. Again, context matters. And there's certainly lots of subtext to read into this. And at the time the only person that President Trump wanted to explicitly break the law was Mike Pence. But on the other hand even though President Trump was advocating for something to happen it really couldn't happen. Overturning Biden's election. He specifically says he wants his followers to march to the Capitol. And if we're at least looking at the literal meaning of President Trump's words he's saying that people should march to the Capitol. Which is a core First Amendment protected activity, generally speaking. But what about this? - But we're going to try and give our Republicans the weak ones because the strong ones don't need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue. - Here, encouraging people to have pride and boldness is probably too vague to imply violence. Especially when he also told them to be peaceful. And what it comes down to is that President Trump asked people to march on the Capitol. To his audience, President Trump's words are probably considered incredibly authoritative. The President said to go to the Capitol. So we're going to go there with him. And in fact, that's exactly what happened. When President Trump's speech was over they pretty much all marched towards the Capitol. But still President Trump didn't tell them to fight police or to storm the Capitol or to even trespass. On the other hand, context is incredibly important. President Trump started his speech at roughly 12 noon and it wasn't until 12:30 that the crowds descended on the Capitol. By about 1:00 p.m., the crowds were already pushing into the outer barricades of the Capitol. Around 1:10 p.m., President Trump ends his speech, which includes line, we're going to the Capitol. - You are going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue and we're going to the Capitol. - And if you don't fight, you're not going to have a country anymore. Of course his speech was given at the White House in The Ellipse which is about a mile and a half away from the Capitol. So you can imagine that a court might consider that this would be a reasonable cooling off period. That's a pretty far distance to travel on foot. In terms of whether you're inciting a crowd to do something. But by 1:30, the crowd had moved from the White House to the Capitol. And by about 2:15, they had breached the Capitol itself and were on the inside with all of the Congress members. But things got a lot hairier at 2:24 p.m. with writers actually inside the Capitol, actively looking for members of Congress and Vice President Pence presumably to do him great physical harm. President Trump tweets out, "Mike Pence didn't have the courage "to do what should have been done "to protect our country and our constitution. "Giving States a chance to certify a corrected set of facts "not the fraudulent or inaccurate ones, "which they were asked to previously certify. "USA demands the truth." But then President Trump follows that up at 2:38 p.m. stating via tweet, "Please support our Capitol Police and Law Enforcement they are truly on the side of our country, stay peaceful. Though shortly thereafter at 3:15 p.m., Ashli Babbitt is shot and killed which is at the same time that President Trump tweets out, "I'm asking for everyone in the U.S. Capitol "to remain peaceful, no violence. "Remember we are the party of law and order, respect the law "and our great men and women in blue, thank you." Now by 4:05 p.m., President elect Biden goes on TV to demand an end to the siege. - It borders on sedition and it must end now. - And by 4:17 p.m., President Trump released his now famous TV address calling for calm, which he has later repudiated. - We have to have peace. - So this is a set of facts that honestly could go either way. Incitement is a kind of legal unicorn. It's much rarer than RICO or entrapment. And almost always incitement is used to try to silence protected speech. But this whole situation comes about as close as you'll ever see to a true case of incitement. It really could go either way. But at the same time we are squarely looking down the barrel of generally protected political speech. And I think that if a court especially the Supreme court will to look at the actual language here, I think they are going to look at this kind of case with about as much scrutiny as they're ever going to apply and probably give the speaker of what is arguably political speech every benefit of the doubt. Which makes a conviction for a criminal case of incitement extremely unlikely. But the question remains does this mean that President Trump is off the hook? Because his words might not meet the actual technical legal standard for a criminal incitement? Well, I'm here to tell you that, that is merely the beginning of the story, it is not the end of the story. Because impeachment and removal is always on the table. I'd covered this before, so I'll only touch on this briefly. The legal standard for impeachment is in Article two Section four, which says a president can be impeached for treason bribery and other high crimes and misdemeanors. As you know, from my past videos on President Trump's first impeachment, sources on how the terms high crimes and misdemeanors should be defined are sparse. But some legal scholars like Jonathan Turley are adamant that this means that Congress can only impeach and remove a person if they've committed an actual crime as defined in criminal law. I think this is absolutely wrong in the vast majority of legal scholars agree that an actual technical legal criminal violation is not necessary for impeachment. No matter what political and Trump supporting flax like Alan Dershowitz and Jonathan Turley say. Now the founders were concerned about offenses committed against the country itself by people in high places of authority. Therefore the term high crimes doesn't mean a high felony like murder or kidnapping. Instead the phrase high crime implies an offense by a person in a high place of authority. Just like it did in England. The constitution also says a public official can be impeached for a misdemeanor. Now in American criminal law a misdemeanor is a crime punishable by less than one year in jail. But misdemeanors are crimes like petty theft, possession of marijuana, disorderly conduct and public intoxication. If we use the standard legal definition of misdemeanor in criminal law, that would expose federal officials to removal from very basic infractions. And that's probably not what the founding fathers want. The founding fathers understood that misdemeanor was a way to punish malrotation in office. Which is an obsolete phrase, but it basically means that it's corrupted behavior by a person in a position of public trust. And not for nothing, in the 1868 impeachment of Andrew Johnson, one of the improved articles of impeachment was on numerous occasions President Johnson quote made "With loud voice, certain intemperate, inflammatory "and scandalous harangues "and did therein utter loud threats and bitter menaces "against Congress and the laws of the United States "duly enacted thereby amid the cries, "jeers and laughter of the multitudes 'then assembled and within bearing." In other words, President Johnson was impeached for his purely political speech. Something that is absolutely not criminal in any way, shape or form. And there are plenty who believed that the president incited a riot. I think not in a technical, legal sense, but in a moral and ethical sense. Like lawyer George Conway who concluded quote, "Working together, Trump and his family and his friends "use the rhetoric of violence of armed uprising "and that is what they got." And I think Conway is probably correct in the moral sense. This was a pro-Trump uprising and it was predictable. Since there were threats posted all over social media. And the president's words were at the very least unbelievably negligent and reckless and might have even been intended to provoke some sort of violent response. It was certainly fomented, supported and provoked by President Trump, even if not legally incited under the Brandenburg standard. But under that very standard, we have to look at the meaning of President Trump's actual words and the actual likelihood of provoking that violence. But on the other hand, Congress can look at the events of that entire day and decide that President Trump breached the public's trust. Not in a technical or legalistic sense, but in a political sense. Because not only was President Trump enjoying the mobs siege of the Capitol as it happened, but even as the mob turned violent, President Trump was busy calling on Mike Pence and Senator Tuberville, and Senator Lee asking each one to be sure to delay the vote to certify Biden's victory. And it appears that when the mayor of D.C asked for help President Trump refused to send in the D.C National Guard. Apparently Maryland tried to send help as well, but Governor Hogan said that the Pentagon inexplicably refused. Between the president's acts of actually contributing to the riot, whether or not that meets the legal standard of incitement between his acts of trying to make things worse, to let the Capitol burn and between his acts of actually trying to literally subvert the democratic process and prevent the certification of his political rival as the next president of the United States those can contribute to an impeachable offense. One that could lead to the president being removed regardless of whether it meets any legal or technical definition. As one legal commentator put it, "Impeachment is a political solution to a political problem. "It should be reserved for truly heinous behavior "that harms the country. "But quote, this wasn't technically a statutory crime "should play exactly zero role in that analysis." In other words, if this is not impeachable conduct, nothing is.
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Channel: LegalEagle
Views: 1,811,728
Rating: 4.7481494 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review
Id: XwqAInN9HWI
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Length: 21min 13sec (1273 seconds)
Published: Tue Jan 12 2021
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