District of Columbia Attorney General Karl Racine has said he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and US Representative Mo Brooks for inciting a violent invasion of the US Capitol. He noted that while the Justice Department doesn’t believe you can blame a seated president, they can do it in a matter of days. Ironically, I believe that Trump can be charged immediately as a constitutional matter, but that his law enforcement would ultimately crumble on freedom of speech.
The Justice Department itself concluded during the Clinton administration that “[n]Neither the text nor the history of the constitution are “dispositive” on this issue, but have issued an internal statement against accusations of a sitting president as “considerations on the constitutional structure”. I have long disagreed with the view that there is a constitutional barrier to indicting a sitting president.
My problem with this criminal case is not the timing of a charge, but the basis for the charge. As I wrote earlier, the governing legal standard for violent speaking is in Brandenburg versus Ohio. As a free speech advocate, I have long criticized this 1969 case and what I believe to be dangerously vague standard. Even Brandenburg, however, would treat Trump’s speech as protected by the First Amendment. In this case, the government may criminalize speeches which “aim to encourage or provoke imminent lawless acts and which are likely to incite or provoke such acts”.
Despite widespread, legitimate condemnation of his words, Trump never called for violence or riot. Rather, he urged his followers to march on the Capitol to speak out against the confirmation of votes and to support the challenges of some members of Congress. He specifically told his supporters “that you should make your voices heard in a peaceful and patriotic manner”.
Such voting challenges have been posed by Democrats in previous elections under the Electoral Count Act, and Trump urged Republican lawmakers to join the effort on his behalf. He stated: “Now it is up to Congress to face this tremendous attack on our democracy. And after that, we’ll go down – and I’ll be with you – we’ll go down … to the Capitol and we’ll cheer on our brave senators and congressmen. “
He ended his speech by saying that a protest at the Capitol should “seek to give our Republicans, the weak, the pride and boldness they need to take our country back. So let’s go down Pennsylvania Avenue. “Such marches are common – in both federal and state capitals – to protest against internal actions or to support them.
For a court in particular, the speech does not contain a direct call for lawless action by Trump. Instead, a protest was called in the Capitol. Furthermore, violence was not imminent; The vast majority of the tens of thousands of demonstrators present were non-violent prior to the march, and most were not upset in the Capitol. Like many violent protests we’ve seen in the past four years, including Trump’s inauguration in 2017, the criminal behavior was carried out by a smaller group of instigators.
I criticized the President’s speech again while he was still delivering it. Right from the start I spoke out against challenging the votes. I commended Vice President Michael Pence for resisting the President. Instead of being impeached, I have asked both houses for cross-party criticism. However, this impeachment can permanently damage our system
If Racine were unwise enough to bring charges on that basis, it would at least allow for a real legal review of the claims of so many legal experts that it clearly constitutes criminal incitement. I would appreciate such a review. Even if Racine could find a trial judge who would allow it, I would assume that if it was based solely or largely on this speech it would quickly fail on appeal. Racine stated, “Whether this comes down to a legal complaint, I think we really need to go into depth and find out all the facts. I know I am considering a DC Code indictment of incitement to violence, and that would apply if it was clearly recognized that incitement could lead to foreseeable violence. “
Racine’s public statements strongly suggest that these individuals, including the president, committed criminal acts. The question is whether this was just a matter of public opinion, whether he will now bring these arguments to a court for a legal challenge.
Many scholars and legal experts have insisted that free speech is not a barrier to such charges. I believe that they are fundamentally wrong in the Control Act. Often such a comment is left unchallenged in court because of the lack of actual indictment. Racine could change that, though I’m not sure if these claims are examined in court it will ultimately be celebrated.