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.
The fascist left is trying to take over the nation and essentially dispense with the Constitution including our Bill of Rights. Everyone should be very afraid.
Nah. We have guns, rifles and ammo….tons and tons of ammo. Good luck finding any of those today for sale anywhere
ROFLMAO
“Nah. We have guns, rifles and ammo”
Anonymous the Stupid talks big even though he doesn’t know what fascism is, much less socialism or Nazism. He has been questioned about this before but failed over and over again. He even said he liked fascism because it was good for the little guy. He should think of how good it was for the Russians or the Italians and Germans. Do you know why Anonymous the Stupid gets all these things wrong? Because he is Anonymous the Stupid.
Allan, you regularly confuse different anonymous commenters, and then you call anyone you disagree with “stupid.” Which is rather stupid.
We’re seeing their attempt to deliver a killing blow to free speech, right before our eyes, just as they destroyed the sovereign franchise of The People.
The once-great republic has, indeed, been usurped and subverted.
They’ve got websites now afraid to allow open discourse lest their corporate-fascist overlords cut off their Internet. Breitbart has shifted comments to a “pending moderation” status that does nothing but chill open discourse and quash the interchange of perspectives and ideas.
It’s a thing of evil, what they’re doing. Hypocrisy, mendacity, and up-is-down demagoguery from leftist-globalist power-mongers and oligarchs.
What was once America is now a corporate oligarchy with elements of both communism and fascism — politicians on both sides of the aisle are bought-and-paid for “aristocrats.” We have a corrupted elitist class that has shredded the constitution — and any moral consistency — right in our faces. It’s ugly.
When Trump passes away he will get his interview at the Pearly Gates with Saint Peter. There will be some witnesses there who died at the riot. After the interview Trump will get sent straight to Hell in a handbasket. No stop at Mar A Lago on the way.
Actually it’s judgmental, self-righteous, and hypocritical people people such as yourself that are in danger. Those that project their own pettiness, blindness, prejudices and grievances and think its aligned with God’s will. And those that turn things around and attempt to stand truth on its head. I urge you to read the Gospels. Also Isaiah, among others.
While you’re at it, think long and hard about your rabid support of a party that gleefully encourages and literally applauds abortion right on up to the moment of birth, that passed off a false dossier as a springboard for an attempt to overthrow a duly elected president, that constantly pushes a racial-division agenda, that constantly shows a “rules for thee but not for me” attitude, that has nothing but derision for the moral, financial, and social concerns of working-class Middle Americans.
Oh boy oh boy: just think for a moment what such an action by AG bonehead Racine would
no doubt unleash. Another demented lunatic Democrat that belongs in a psychiatric ward!
Actually, no. This isn’t as easy a crime to prosecute trump as on others — but a conviction wouldn’t be that hard to come by. A good prosecuter will take the free speech objections being trumpeted by the defense and look for connections to trump leaning on the National Guard to hold off showing up.
A slightly harder case to prosecute than what awaits trump in NY on tax and insurance fraud. And probably a hair less prosecutable than his extortion and obstruction in Georgia so should probably be placed down the list somewhat.
Elvis Bug
What statute? 18 usc 373? Solicitation to Crime of Violence? Nope
Sedition? Well, You should read about the “Fort Smith” sedition trial of the 80s. A big failure for the feds against a bunch of unrepresented racists. It’s not exactly an easy case to prove
Here’s whats more. Those are NOT state charges and we can almost be certain now, that Trump WILL self pardon for federal offenses. Pelosi admitted he can do that in the 60 minutes interview.
Saloth Sar
When communist DAs are made DOA, then justice will start to be honestly served.
Why is it the Proud Boys and the White Nationalists always hear so loudly and clearly exactly what Trump is saying to them but it goes over the head of Professor Turley?
Apparently your whining is not having its desired effect on Turley, he seems to be ignoring you.
I encourage you to kick it up a notch…whine even MORE…that should do the trick.
He ducks.
Turley deflects and diverts.
He told the crowd something was being stolen from them when nothing was being stolen from them. And he pointed them in the direction of the people whom he said had stolen from them. Then he made sure there was not enough people guarding the place where the people he said were stealing from them were located.
It is like in the old south, like a Mayor saying this black kid raped this white woman when he had done no such thing. Then pointed a crowd in the direction of the house where the black kid was located, and told the police to stand back.
“Then he made sure there was not enough people guarding the place . . .”
The United States Capitol Police department is under the authority of Congress (not the President). But, by all means, don’t let facts interrupt a hostile narrative.
If you want to place blame for them being under-manned and dispirited, blame those who defund and demonize the police.
Sam, ,details not doubt will be forthcoming, but the Capital Police early on called the DOD for help and were stonewalled.
False. By the way, Trump doesn’t even control DOD.
The DC National Guard is under the authority of the President.
“The DC National Guard is under the authority of the President.”
You people are funny.
During the Antifa/BLM riots, you condemned using the National Guard, on the grounds that they are a “militarized” police presence and that using them is “fascist.” Now you condemn the National Guard for *not* being present.
Plus, you have the facts wrong, are clueless about the DC National Guard’s chain of command, and about the logistics of mobilizing them to the Capitol Building. (Look it up.)
“ 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.”
Really? You have long disagreed with the view that there is a barrier to indicting a sitting President?
You didn’t say that when the Mueller report came out. In fact you defended that view. Turley, you’re being quite disingenuous with your “views”. It seems your “views” are highly dependent on who is in office. Not on principle. SMH.
Perhaps he thinks his 15 minutes of fame will enable him to hold elected office in the near future.
“ Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. ”
Turley is only focusing on the speech. What he ignores is the months of inflammatory rhetoric that built up to Wednesday’s rioting.
Incitement according to the law doesn’t have to be a direct call for action. The fact that his speech culminated in violence after months of such inflammatory rhetoric is certainly not protected by the first amendment.
Just like chanting “Hang VP pence” can be construed as a death threat which is also not protected under free speech. Especially when people are hanging nooses outside and people threatening to round up lawmakers, bursting into their offices looking for them.
When it comes to Trump, Turley says it’s ok to yell fire in a crowded theater when there’s no fire.
Fish, you keep saying this. Im going to tell you again, the relevant case that suggests you are wrong in your assessment.
Brandenberg v Ohio. Look it up, easy to find
Sal Sar
If that Happens. Every Democrat from here to DC will be pulled form their beds and executed. Every Single One.
If you call for mass murder, you’re unethical.
Their desperation has reached a fever pitch. They sense what is coming, and they know it’s game over.
Nothing can stop what is coming…the final seconds are ticking down.
Tick-tock-tick-tock…
This post is an exact replica of what trump does…
Does it mention specifics? >>> No.
But it’s clear what it refers to. This is what trump does every single day he’s had access to the American public. As Donald Trump. As David Dennison. As John Barron.
He literally dares everyone to be brazenly daring, racist and stupid. Many behave accordingly.
Elvis Bug
“But it’s clear what it refers to.”
If not, it will become clear.
Tick-tock-tick-tock…
Taking trumpy bear up a notch. Aha.
Elvis Bug
Who are “they”?
Get a skank off the couch in the oval office. First order of business.
Trump is the son of a mobster, and as is often the case with mob children, they lose the contextual reality of the father due to, in trump’s case, complete lack of consequences. He is a mix of pure hypnotic marketing ability and blatant stupidity. Either way, we all know, what he meant with his words and his diehards are now going to feign ignorance…, “…what??? trump meant no such thing!!”
Please keep that idiocy to yourself.
And yes Jon, probably best to focus the legal thrust against trump to the more easily prosecutable charges coming his way.
Elvis Bug
Elvis Bug, I do not know why you think Fred Trump was a “mobster.” Do you have any evidence of that?
Also I have some personal familiarity with people who have actually served time for organized crime. I am not sure your characterization that their children have a lack of context or whatever you were trying to say. Really, what were you trying to say? I promise to give it some thought if you will make yourself clear.
Sal Sar
Sal, what is amazing is that the unknowledgeable can make such accusations without ever apologizing or correcting themselves. They have the ability to do the same over and over again.
Fred Trump was a builder and had a good reputation. The state and feds had some problems with him, but he prevailed. The state created the rules and when the rules were followed the state got angry because if they handled the projects under the same conditions they would have lost money. We have seen that over and over again in NYC.
Notice that JT says “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” but then says nothing about the statements made by Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks.
For example, Giuliani: “Let’s have a trial by combat.” So, JT, do you consider that incitement?
Or Mo Brooks: “Today is the day American patriots start taking down names and kicking ass.” “Our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you are you willing to do the same?” JT, do you consider that incitement?
What a legally cowardly column to ignore all but Trump.
And, unfortunately, completely standard Turley fare these days.
Elvis Bug
“standard Turley fare”
JT’s “fare” beats your mindless twaddle every day of the week, bug.
You’re not even capable of elucidating what type of “fare” you’d like Turley to write.
I elucidate it every single time I comment you dumb f&*k Rhodesy. The fact you’re too dense to see it isn’t my problem.
Elvis Bug
“cowardly”
You’re the worst kind of coward.
“Burn it Down”, much?
How many Trump supporters have set occupied buildings on fire while barricading the exits in order to ensure that the occupants are burned to death?
You’re so stupid that you actually thing your feeble minded BS will pass muster.
On the contrary, Rhodesy, I’ve repeatedly spoke out against violence on the left too.
You don’t see or hear it because you don’t want to see or hear it.
“Rhodesy, I’ve repeatedly spoke out against violence on the left too.”
Anonymous the Stupid isn’t being quite honest. His support against violence from the left was very luke-warm on the few occasions he has mentioned it but otherwise he has heavily praised the results of left violence and was pumped up by it. Though partly true, his statement is false and sounds deluded. Do you know why he is deluded? Because Anonymous the Stupid is stupid.
Or Mo Brooks: “Today is the day American patriots start taking down names and kicking ass.”
Unless someone wound up with a foot in his backside, that won’t cut it.
It’s telling that you ignore the second half, “Our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you are you willing to do the same?”
How can one advocate for censure, which is a form of government punishment, for speech that is protected by the 1st A?
Are we living in crazy town?
If the DOJ AND FBI CIA work harder since 2016 against trump im not surprised about they wil.continue with the abuse of powers because he is the outsider ……look the diferente with Bidens family crimes we got two laws one for them and one for the others
“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.”
Exactly what was “justified” about the “condemnation of his words”, Jonathan?!
By your own admission (in the same paragraph no less) you correctly stated that, “He expressly told his followers “to peacefully and patriotically make your voices heard”.
You seem to be very conflicted.
Yes. Even Snopes indicates nothing was said that could be considered an incitement:
https://www.snopes.com/fact-check/trump-tell-supporters-storm/
Prairie, at his trial then Trump can explain what he expected the mob he incited to do. Mobsters know how to give orders that don’t incriminate them.
Some of them were useful idiots.
I suspect it was a nice psy-ops. Antifa can infiltrate a crowd, among others. This isn’t an R vs D issue.
Cui bono?
Every Honeymoon comes to
An end.
Most through self destruction.
I’ve read several books about Watergate and DC Judge Sirica was planning on recommending criminal indictment of Richard Nixon. Few historians mention that Nixon may have resigned to avoid prison time.
“I’ve read several books about Watergate”
WTF does Watergate have to do with this topic?!
“Few historians mention” that the greatest crimes Nixon committed were taking the US dollar off of the gold standard, opening up communist China, and allowing Kissinger to prolong the Vietnam War through the bullsh*t Paris Peace talks.
All 3 of which were dictated by the same money masters who got rid of JFK, and then had LBJ manufacture the Gulf of Tonkin incident in order to greatly escalate the war in Vietnam.
Nixon and LBJ are a perfect example of why a two party system is a recipe for disaster.
Watergate was about presidents that are disloyal to their supreme loyalty oath (Title 5 US Code 3331 and Article VI of the U.S. Constitution).
I don’t think judges making ‘recommendations’ to grand juries is a part of any state’s criminal procedure law.
Richard Nixon resigned when Barry Goldwater informed him that only 15 Senators would vote to BLOCK his removal from office. He was done. Nixon wasn’t indicted because Gerald Ford would not stand for it and pre-emptively pardoned him. All of this was public information at the time. (If Leon Jaworski and Henry Ruth had tried to take Nixon to court, they might have ended up with a result like Lawrence Walsh did in re Oliver North: they get a conviction on 15% of the counts on the bill and then their convictions are vacated on appeal).
Racine, as DC AG, has little authority over prosecuting crimes that occur in the District of Columbia. That’s left to the US Attorney for DC. So what’s he going to charge Trump et al. with? Disorderly conduct?
The US-A for DC prosecutes federal crimes. The DC AG prosecutes District crimes. Racine has authority.
So….if I were to go on Facebook or Twitter and call for every Trump supporter (about Seventy Million voters and untold number of others that support Trump) to refuse to pay their Federal Income Tax this year……would that be a violation under that Court Ruling?
I suppose such a thing if successful resulting in a Trillion Dollar or so Tax Revenue shortfall and the utter collapse of the IRS Collections system might be considered a lawless act that damages the Federal Government.
What if Millions of others took up that call and passed it along….would that constitute “Insurrection”?
Just asking for a friend of course!
Oh Ralph, your on the naughty list now for sure.
Hey Ralph good question, why didnt I think of that?
Sal Sar
https://nwtrcc.org/war-tax-resistance-resources/