Donald Trump’s second impeachment trial will begin on Tuesday, and House Democrats prepared this week by filing their case for barring him from office and calling on him to testify under oath. In their 80-page brief, they argue that Trump was “singularly responsible” for the violence on Jan. 6 that left five people dead and dozens more injured, having “summoned a mob to Washington, exhorted them into a frenzy and aimed them like a loaded cannon down Pennsylvania Avenue.”

As far as impeachable offenses go, “incitement of insurrection” is perhaps a less abstract transgression than the “abuse of power” and “obstruction of Congress” charges Democrats brought against Trump about this time last year. But incitement is also an actual crime in the federal legal code for which Trump could, in theory, be prosecuted and imprisoned. Does Trump have a defense? Here’s what legal experts are saying.
‘Incitement’ or ‘free speech’?

In the weeks leading up to the attack, the brief notes, Trump called on his followers to attend a “Save America March” to “stop the steal” on the day Congress was to certify President Biden’s win. He promised it would be “wild.” When the day came, Trump stood at a podium with the presidential seal, directed his supporters to the Capitol and declared, “We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”

In their own brief, Trump’s lawyers denied that his statements amounted to an incitement to violence. Claims to the contrary, they argue, are a violation of Trump’s First Amendment right to express his belief that the election results were suspect. They also deny that his calls to “fight like hell” had “anything to do with the action at the Capitol, as it was clearly about the need to fight for election security in general.”
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But the right to free speech, like virtually all rights, is not unlimited. While the scope of the First Amendment’s protection from government restriction of speech is broader than that of other liberal democracies, many kinds of speech still fall outside it, including libel, obscenity, serious threats, violations of intellectual property, disclosure of classified information and, yes, incitement.

That being said, the legal standard for what kinds of speech constitute incitement is quite narrow, Suzanne Nossel, the chief executive of PEN America, writes in The Times. That standard is handed down from Brandenburg v. Ohio, a 1969 Supreme Court case that overturned the conviction of a Ku Klux Klan leader named Clarence Brandenburg, who called for “revengeance” against the federal government. The court determined that for speech to count as incitement, it must satisfy three criteria:

The speech must be intended to encourage lawbreaking.
The lawbreaking encouraged must be about to happen immediately.
The speech must be likely to cause the lawbreaking to occur.

The Brandenburg case significantly expanded the ambit of the First Amendment’s protections, as Noah Feldman, a professor at Harvard Law School, explains. The court’s earlier standard was a version of the “clear and present danger” test created by Justice Oliver Wendell Holmes in 1920, which was notoriously interpreted to allow the conviction of Communists during the second Red Scare in the 1950s.

Would Trump’s speech pass the Brandenburg test? Legal scholars disagree. Nossel, for example, says the last two prongs would be relatively easy to prove, since the attack on the Capitol happened immediately after Trump’s speech, but that proving his intent would be a more difficult hurdle.
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“It would be a very tough case — there’s a difference between heated political rhetoric and actually directing one’s followers to commit violence,” Clay Calvert, a law professor at the University of Florida, told First Amendment Watch. “Trump sent them off down the street, for sure, with his words, but did he send them off to commit violence? That’s the trickier part to prove.”

But Catherine J. Ross, a First Amendment expert, thinks the facts point in the opposite direction. She notes how he did nothing to stop the attack as he watched it on television — he was, in fact, reportedly “delighted” by it — and undercut his later calls for peace by tweeting that a landslide victory had been “viciously stripped away” from him. “All of this demonstrates that Trump intended the result he got: insurrection,” she argues.
How much does Brandenburg matter for impeachment?

It doesn’t. As the Times columnist Bret Stephens writes, impeachment is not a criminal trial, so Democrats don’t need to meet the same burden of proof that a prosecutor would in court. Most scholars, though not all, think that impeachable offenses need not even correspond to an ordinary crime.

“Impeachment is essentially a glorified process to determine whether someone should be fired from their job,” Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University, told The Washington Post last year.
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And the Supreme Court has long held that public employees can be fired for speech that could not be prosecuted. “The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity,” writes Anthony Romero, the executive director of the American Civil Liberties Union. “In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words.”

With the Brandenburg standard set aside, Democrats were able to broaden the scope of their argument against Trump. Here is some of the wide-ranging evidence they cite as proof that he incited the Jan. 6 attack:

Throughout his campaign, he approved of and celebrated violence, as when he told the Proud Boys, a far-right group with several members accused of playing a prominent role in the attack, to “stand back and stand by” and responded to a video of his supporters attempting to force a bus carrying Biden campaign workers off a highway in Texas by tweeting, “I LOVE TEXAS!”
He refused to agree to abide by the election results and sowed doubt about them by spreading false claims of voter fraud in the months leading up to Nov. 3.
He insisted in the months after that the election had been “stolen” from him, insinuating that it was “an act of war” that demanded a “fight to the death.”
He used “improper and abusive means of staying in power” when it became clear that his claims had no legal merit, including a pressure campaign to conscript state officials into overturning and blocking the certification of election results.

Could Trump be prosecuted for incitement?

No former president has ever been charged with a crime. But the top federal prosecutor in Washington said the day after the attack that the Justice Department would not rule out bringing incitement charges against Trump. Some former prosecutors say that his conduct justifies at least an investigation by a grand jury, which could subpoena internal White House communications to help determine whether he intended to incite violence.

If a grand jury thought that he did, several statutes could come into play, my colleague Charlie Savage writes. For example, one federal law makes it a felony to induce or even to try to persuade someone to engage in the criminal “use of physical force against property or against the person of another.” A conviction under that law carries a maximum sentence of 20 years in prison.

But many legal scholars seem to think a conviction unlikely. In devising the Brandenburg standard, the Supreme Court “deliberately created a speech-protective test that was very hard to satisfy,” writes Eugene Volokh, a professor of law at the University of California, Los Angeles, in Reason. “And that test of course applies equally to all speakers, politicians or otherwise.”

But should it? Some argue that the Brandenberg test should be updated to take into account the authority of the speaker. “In antitrust law, conduct by a monopolist is often treated as illegally anticompetitive even when the same conduct by a non-monopolist would not be treated as such, because the monopolist’s greater power means their conduct is more likely to have anticompetitive effects,” writes Einer Elhauge, a Harvard law professor, in The Washington Post. “A parallel consideration ought to apply under the First Amendment because, compared to incitement by private actors, incitement by a president is much more likely to incite successful lawless action.”

Nossel says that is a reasonable idea, but warns that any revision of the Brandenburg standard should be made with an abundance of caution: “If the closely watched proceedings against Mr. Trump can be interpreted as precedent-setting insofar as the law of incitement is concerned — morally speaking or otherwise — we would risk a perverse result whereby those impeaching Mr. Trump for his abuses in office could make it more perilous for future dissenters and reformers to hold the powerful to account.”

Expanding the legal definition of incitement could also have consequences for other politicians. In Newsweek, Mark Davis raises the example of Representative Maxine Waters, who, in response to the Trump administration’s family separation policy at the border, told people in 2018 that if they saw cabinet members in public, they should “create a crowd” and “push back.”

“Representative Waters remained a free woman in the days following what looked — to my untrained eye — like a directive to greet political opponents with public verbal assault at the very least,” Davis writes. “One wonders whether, if someone had punched a cabinet secretary the following day, Waters’ Democratic colleagues would insist on the same definition of ‘incitement’ that they do today.”
The New York Times
Me: How do you compel a compulsive liar to tell the truth about anything and how do you know when they are not lying?