- 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.
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.
Lol trumpers mad 🤡🤡🤡🤡🤡
Donald J. Trump needs to be convicted and locked up in prison
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.
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.
Simple answer is yes, the guy and those enabling what he's done should be locked up.
https://en.wikipedia.org/wiki/Lone_wolf_(terrorism)#Stochastic_terrorism