District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol.  He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.

The Justice Department itself concluded during the Clinton administration that “[n]either the text nor the history of the Constitution” is “dispositive” on this question but has rendered an internal opinion against indictments of a sitting president as a matter of “considerations of 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 an indictment but the basis for the indictment. As I wrote earlier, the governing legal standard for violent speech is found in Brandenburg v. Ohio. As a free speech advocate, I have long criticized that 1969 case and what I consider its dangerously vague standard. However, even Brandenburg would treat Trump’s speech as protected by the First Amendment. Under that case, the government can criminalize speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”

Such electoral-vote challenges have been made by Democrats in past elections under the Electoral Count Act, and Trump was pressing Republican lawmakers to join the effort on his behalf. He stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”

He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.

For a court, the speech notably does not include a direct call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent; the vast majority of the tens of thousands of protesters present were not violent before the march, and most did not riot inside the Capitol. Like many violent protests we have witnessed over the last four years, including Trump’s 2017 inauguration, the criminal conduct was carried out by a smaller group of instigators.

Once again, I criticized the President’s speech when he was still giving it.  I opposed the challenge to the electoral votes from the outset. I praised Vice President Michael Pence for defying the President. Rather than impeachment, I have called for a vote of censure from both houses on a bipartisan basis.  However, this impeachment could cause lasting damage to our system

If Racine was unwise enough to charge on this basis, it would at least allow for a real legal review of the claims of so many legal experts that this clearly constitutes criminal incitement. I would welcome such a review. Even if Racine could find a trial judge to allow this to go to trial, I expect it would fail quickly on appeal if based exclusively or largely on this speech. Racine declared “Whether that comes to a legal complaint, I think we’ve got to really dig in and get all of the facts. I know I’m looking at a charge under the D.C. Code of inciting violence, and that would apply where there’s a clear recognition that one’s incitement could lead to foreseeable violence.”

Racine’s public statements heavily suggest that these individuals, including the President, have committed criminal acts.  The question is whether this was just a pandering to the public of whether he will now make those arguments in a court of law to allow for a legal challenge.

Many academics and legal experts have insisted that free speech is no barrier to such charges.  I believe that they are fundamentally wrong on the controlling law.  Often such commentary is left unchallenged because of the lack of any actual charge in court. Racine could change that, though I am not sure it will be ultimately be celebrated when these claims are tested in the court system.