On Jan. 6, a group of Americans assembled in Washington, D.C.: some to protest the counting of Electoral College votes they believe were cast as a result of a fraudulent election, some to support then-President Donald Trump, some to encourage the counting of the Electoral College votes, some to protest Trump and some simply to create chaos and destruction.
During this assembly, some people chose to engage in violence that resulted in damage to the Capitol building and the loss of life. During this assembly, multiple groups and individuals, including Trump, gave speeches, for which transcripts are available.
H.R. 24, the House’s articles of impeachment, alleges that the actions of those who carried out the violence are attributable to Trump due to words uttered at a rally and that he is thus subjected to legal and constitutional impeachment pursuant to Article II, Section 4, of the U.S. Constitution for “incitement of insurrection.”
Article II, Section 4, of the Constitution reads, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Is former President Donald Trump guilty of “incitement of insurrection” by inciting violence against the United States?
Is former President Donald Trump subject to impeachment according to the Constitution under Article II, Section 4, of the Constitution for “incitement of insurrection?”
Answer and Discussion
The Brandenburg test was established in Brandenburg v. Ohio to determine when inflammatory speech intending to advocate illegal action can be restricted. In that case, a KKK leader named Brandenburg gave a speech at a rally and, after going over a laundry list of racial slurs, then said, “It’s possible that there might have to be some revengeance taken.”
1. The speech is “directed to inciting or producing imminent lawless action.”
2. The speech is “likely to incite or produce such action.”
Further Supreme Court opinions give specific direction on the application of the Brandenburg test.
The Supreme Court in Hess v. Indiana (1973) applied the Brandenburg test to a case in which an Indiana University protester said, “We’ll take the f—ing street again” (or “later”). The Supreme Court held that the university protester’s profanity was protected under the Brandenburg test, as speech that “amounted to nothing more than advocacy of illegal action at some indefinite future time.”
The court held that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”
In NAACP v. Claiborne Hardware Co. (1982), a man named Evers made threats of violence against anyone who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that Evers’ speech was protected under the principles of freedom of speech: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
The question is: Did Trump engage in speech that qualifies under the Brandenburg test as inciting? The only relevant evidence in this accusation will be the transcript of his speech. In this transcript, we see no language that fits the Brandenburg test definition of incitement. What a reader of this transcript will find is:
“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.”
Using the Brandenburg test, as established by the Supreme Court, it must be concluded that Trump’s speech did not rise to the criminal level of incitement. Consistent with the Supreme Court’s opinions, the speaker over a group cannot be held accountable for the actions of that group unless the speaker “directed to inciting or producing imminent lawless action,” and the speech is “likely to incite or produce such action.”
It is highly dubious to assert that directing a crowd to “peacefully and patriotically make your voices heard” incites violence and insurrection. There can be disagreement as to the appropriate nature of Trump’s words in general. There cannot be disagreement as to the statements made in his speech, since they are recorded and freely available.
This is the only reasonable and moral way to maintain the essential standard of freedom of speech as enshrined in the Bill of Rights. Any standard that deviates from this test in favor of criminalizing speech ought to be unacceptable in a nation built upon the essential principles of personal liberty.
The Supreme Court held in Texas v. Johnson (1989) that “a bedrock principle underlying the First Amendment … is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Finally, the Supreme Court held in Gregory v. Chicago (1969), “To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men, rather than of laws. There are ample ways to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy and unwieldy weapon.”
To allow disagreement over words and meanings, to allow political dissension to become the standard of criminal activity, violates the Constitution and the standards established by the Supreme Court and transmutes America from a land whose foundation is settled in due process and the rule of law to one ruled by the “clumsy and unyielding weapon” of politicians, mob rule and arbitrary standards that are antithetical to everything that embodies our constitutional republic.
Because Trump’s speech does not meet the two-prong test as established by the Supreme Court, it must be concluded that his speech has not risen to the level of criminal activity.
Since the standards of due process lead us to conclude that no crime was committed, the House impeachment accusation is unlawful as there was no violation of a “high crime or misdemeanor.”
Finally, because the criminal elements of incitement are not met, Trump cannot, under the law and the Constitution, be convicted for incitement by the Senate at trial.
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