While the riots continued in Brooklyn Center, Minnesota and across the country, Rep. Maxine Waters, D-CA, went to Minnesota and told protesters to “stay on the streets” and “become more confrontational.” The statement is ironic as Waters is one of the members of the House of Representatives currently suing former President Donald Trump and others for inciting violence on Jan. 6 with his words at the Mall. Waters insists that Trump told his supporters to go to the Capitol to have their voices heard and to “fight” for their voices. Conversely, after several nights of unrest and looting, Waters spoke and urged protesters to stay on the streets and become even more confrontational. Violence ensued following the statements, including a shooting incident in which two members of the National Guard were injured. Waters has now guaranteed that she can be called as a witness by Trump in his own defense against her own lawsuit.
Waters’ latest words could be cited in the ongoing litigation over the January 6th uprising on Capitol Hill. As I discussed earlier, the lawsuit brought by the House of Representatives and the NAACP could prove to be a colossal flaw. It is one of several lawsuits, including one brought by Rep. Eric. Swalwell, D-Cal, that could justify Trump right before the next election. While it is possible for members to find a trial judge to rule in their favor, if they get that far, those appeals should fail. In addition, they would fail unequivocally under a standard of evidence lower than the criminal law standard. Such a result would invalidate the claim that Trump was guilty of criminal incitement in his speech.
After the uprising, various legal experts appeared on news channels to announce that this was a strong, if not conclusive, case of criminal incitement. Trump was clearly guilty of criminal incitement. CNN legal analyst Elie Honig said, “As a prosecutor, I would like to show Trump’s own inflammatory statements to a jury and argue that they cross the line into crime.” Richard Ashby Wilson, dean of the University of Connecticut’s Associate Law School, said: “Trump crossed the Rubicon and instigated a mob to attack the US Capitol as Congress was counting the polls from the electoral college. He should be prosecuted for instigating an uprising against our democracy. “District of Columbia Attorney General Karl Racine then roused many by saying that he was investigating Trump on a possible incitement.
As I wrote earlier, these statements have ignored both the elements of this crime and the controlling jurisdiction. While these and other experts insisted the January 6th crime of incitement was obvious and public, no charges were brought against Trump despite more than four months. Why?
The reason is that an actual criminal trial would result in not only the indictment being rejected but also the basis for Trump’s second impeachment. Trump’s January 6 speech would fail the Brandenburg test against Ohio, where the Supreme Court insisted that even “advocating the use of force or violating the law” is safe unless it is imminent. Trump did not call for the use of force, but called on the people to protest “peacefully” and “cheer on” their allies in Congress. After the violence broke out, Trump later urged followers to respect and obey the Capitol Police.
Now, Waters, Swalwell, and others rush where smarter Democrats are afraid to step. These civil lawsuits actually make claims such as inflicting emotional distress that have been outright and unequivocally rejected by the Supreme Court. In 2011 the court ruled 8: 1 in favor of Westboro Baptist Church, a notorious group of zealots who made homophobic protests against the funerals of murdered American troops. When Chief Justice John Roberts dismissed a lawsuit against the Church on constitutional grounds, he wrote: “The speech is powerful. It can inspire people to act, move them to tears of joy and suffering, and – as here – cause great pain. According to the facts at hand, we cannot respond to this pain by punishing the speaker. “
However, Waters is no more put off by current case law in this area than the legal experts for CNN and MSNBC. Indeed, Waters went further and insisted that Trump should be charged not only with criminal incitement but also with actual “premeditated murder.” She stated, “So that the President of the United States could watch the invasion and the insurrection and not say a word, knowing that he absolutely initiated it – and as some of them said, he invited us to come.”
That brings us back to Brooklyn Center this weekend. Violence and looting have spread across the country, including near the area where Waters spoke. Still, she urged people to stay on the streets and become more “confrontational”. She added that no court rulings to the contrary would be accepted in the Chauvin case: “We are looking for a guilty verdict. If we don’t, we can’t go away. “Protesters were not only encamped around the courthouse, but the home of a witness in the Chauvin case was targeted. (It turned out to be his former home). Critics could accuse Waters’ testimony and these protests of intimidating witnesses or influencing the trial – just as critics accused Trump attempting to intimidate or influence Congress.
Following Waters’ remarks, protesters confronted reporters in a tense scene. Protesters also came to the home of the prosecutor responsible for the second degree manslaughter charge against the officer who killed Daunte Wright. The Minnesota National Guard was also shot at and at least two guardsmen injured. This is not to say that water instigated such acts, but that the same alleged link could be made in making such a claim as in the impeachment of Trump.
In my opinion, these words are a political speech and should not be prosecuted. However, I felt the same with Trump’s speech (which I condemned when he found it inconsiderate on Jan. 6). I also dismissed previous allegations against Waters when she encouraged protesters to confront Trump officials in restaurants and “push them back and you tell them they are no longer welcome anywhere”. It’s all protected language.
However, this standard cannot be applied selectively to some but not all civil unrest or protests. Waters encouraged protesters to continue to fight for what they believe in. Their overheated rhetoric could easily be viewed by some as an invitation or confirmation of unrest. However, criminalizing such a speech would destroy the guarantees of free speech in our country.
Carl Jung once said: “Everything that irritates us about others can lead us to an understanding of ourselves.” This certainly seems to be the case with Waters and Trump. It’s also why Waters could be the only witness Trump has to call to defeat her own lawsuit.
This column was also published on Fox.com