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.
And you keyboard lawyers don’t think that indicting a U.S. president on trumped-up charges won’t cause a constitutional crisis? Eh?
The idea that we cannot arrest or indict a sitting President is ludicrous, in fact the opposite is true because the President doesn’t have the protection during travel to and from the capital that the representatives in congress have, the disability due to an absence is definitely provided for, and upon arrest or indictment which may result in his being held in custody while awaiting and during trial, an absence is created in the Presidency which must then devolve on the Vice President, the President of the Senate, until the reason for the disability has been removed.
This goes for being impeached in the House as well, and upon impeachment in the House the President is taken immediately into custody and the Chief Justice who presides over the trial for removal of the President will determine the conditions of custody and when the trial will be conducted. McConnell doesn’t preside over the Senate, the President of the Senate does, and during the trial of removal of the President the Chief Justice does, and the President pro Timpore of the Senate does for all other Senate matters.
And if the Senate does reach a finding of removal of the President there is nothing which says that the President just packs his bags and goes home, no, he is immediately remanded into the custody of the criminal justice system to face criminal trial and criminal penalties, up to and including loss of life and property!
Maybe you geniuses need to spend more time actually reading the Constitution and comprehending it’s principles instead of trying to interpret it to circumvent and undermine the protections established within to deal with these kind of situations!
upon impeachment in the House the President is taken immediately into custody
‘. . .upon impeachment in the House the President is taken immediately into custody . . .”
That exists only in your fevered imagination — as does the fantasy that your comment is coherent and punctuated.
These totalitarian bigots have lost their minds. This guy is actually inciting violence by pretending to make up a crime and charge an innocent person for something that never happened. The censoring of free speech is reminiscent of the worst facist and authoritarian regimes in history.
Frankly, this is an obvious attempt to change the public discourse over a stolen election. Joe Biden’s silence on this attempted coup is starting his presidency off on a very dangerous foot. His silence is an incitement of violence and a call for an actual overthrow of a corrupt government. I keep wondering when he will condemn the rhetoric of his base.
Mr. Turley,
However truth filled your arguments, these radicals have already proven laws are moot. They will arrest and charge whomever they feel deserves the gallows. They are banking on corrupt judges to look the other way and not rule based on constitutional precedent. We are doomed already when we see public officials clamoring for heads in spikes. Welcome to utopia… btw I don’t think you or your ilk are safe from these monsters. Take care.
This halfwit AG better learn to run faster than 1200 ft/sec, because patriots will not tolerate this ridiculous BS!
I guess the good Professor is cool with people threatening murder on his blog as long as they don’t use any foul language, and as long as they threaten the correct people.
It seems that the reasonable Professor is just fine with an election being stolen, a police officer murdering an unarmed civilian woman, and the FBI denying any Antifa were involved when clearly they were. No, Trump should be formally censured. He clearly doesn’t see that his reasonable Republic has fallen.
Makes no difference. The die has been cast. After a purge of RINOs and weak-kneed traitors, after the new Republican party takes the House back, they will impeach Xiden, monthly.
Wait, I thought Trump was going to win an then Durham would indict Obama and Biden.
Change in plans?
For some reason, Dems think that riots are only allowed by their supporters, nothing could be further from the truth. If democrats keep going down this one way road, they are going to get an education in mob rule.
Your vote is meaningless.
Courts are corrupt.
Communist Coup to be completed by the 20th.
“Your vote is meaningless.”
That’s one way of looking at losing an election Manny, and better luck next time. Maybe don’t pick a lying selfish scumbag who never broke 50% approval. I mean, what did you expect?
Your either a sheep waiting to be sheered or just can’t get off the Democrat Plantation. Either way you are not free.
ROFLMAO
BRAVO!
How can someone “incite” a pre-planned riot? Especially if they were not involved in the planning. And if they were a 45 minute walk away when it started? John Solomon is not biased or fake reporting.
https://justthenews.com/government/congress/three-critical-questions-about-capitol-siege-remain-unanswered
In the news reporting business It’s commonly called “a source”. You really are challenged.
Too bad Solomon didn’t check his “source” against the State Dept, IMF, EU, and Ukrainian Parliament. They all wanted the prosecutor fired and none of them gave a flying f..k about Hunter’s $50k a month gig.
Exactly right Mr. Turley and appreciate your constitutional law which I agree with you on the points.
You also had the information correct and that is the main point
They are trying to charge Trump with a typical Democrat made up accusation.
Trump never incited a riot
& they don’t have any words that say he did either.
Sad is how Democrats make wild accusations all the time and they are taken seriously
I’ve said going back even before the Russia Hoax divided the nation based on a wild accusation which never should have got the attention but for the fact Democrat accusations are all played way way way too seriously
I look at the depth and breadth of these flailing desperate actions and get more convinced Trump will not step down and will file charges and arrest a large number of DC swamp creatures and retain the Presidency.
Trump lost the election. If he refuses to leave the WH on Jan. 20 of his own accord, he will be removed by Secret Service.
It is not a matter of Trump “stepping down.” Biden becomes President when he is sworn in on Jan. 20
They own the courts, they own the FBI, of course they can charge Trump, and convict him. Who’s to stop them? He’ll probably end up with Emmet Sullivan as judge and won’t that be delicious. We have no access to any real information because of the Big Tech blackout. This is all just a huge distraction from the fact that the election was blatantly and brazenly stolen and from the other fact that Biden is unfit for office. The left knows how to fight, I’ll say that.
Media-induced TDS has produced what? A fraud, a corrupt, pay for play politician, bought and paid for by the CCP, is our great new leader. No one believes a word he says. More than 50% of the population believe the election was rigged. And they will NEVER accept the result. All the authorities had to do was allow a forensic audit of the election results in the swing states. Their refusal to do this shows that they are in on the steal. And that they couldn’t give a toss if everyone knows they cheated. How can this possibly stand?
Zeit, why don’t we quit calling each other liars and look at the scoreboard? Where’s your proof of a stolen election other than Trump’s saying so far before the 1st voet was cast. Got anything elese?
Joe Friday, how can you be so blind? Actually, I know. All you do is listen to the droning of the fake news mainstream media. But the evidence of election fraud is overwhelming if you have investigated at all. There are literally thousands of sworn affidavits from people who witnessed firsthand the fraud. How do you explain over 200,000 returned mail-on ballots in PA than what were sent out? How do you explain all the votes reductions in President Trump’s vote totals, often accompanied by identical increases in Biden vote totals? I have recordings of some of those from live TV,. Look at this for example. https://www.thegatewaypundit.com/2020/11/four-videos-four-states-votes-switched-live-tv-away-president-trump-biden/
Data from election night reveals over 423,000 Trump vote reductions in PA alone. How do you explain that except by systematic fraud? How do you explain Dominion Voting machines registering fractional vote totals (i.e. not whole numbers)?
Debo, where’s the proof of a stolen election? You know Trump has been selling that as the excuse for his expected loss since 2019 and that was before the 1st vote was cast, right? You also know he’s a selfish and constant liar, right? Why do you believe this BS, besides the probability you want to believe it.
Did mail-in voting happen, or not? What is wrong with you people?
Democrats have politicized nearly all their AGs. It started with NY a few decades ago and then spread. The dems politicize everything, the flag, the military, masks.
Soros owns these DAs.
They’re living up to the other meaning of that acronym.
US Attorneys are appointed by the President. DA’s are elected. How does Soros fit in this?
Since you seem to be incapacitated and possess an inability to think critically and step back and take a macro view at the process, I think I will just forgo answering your interrogative: How does Soros fit in this? You don’t appear to have the brain power to understand the answer to your own question.
OH, OK.
You know other people will read your response than just me. Don’t you want to lay out all your evidence and razor sharp reasoning on this claim. I just pitched you a softball, high and inside and you took it for called strike 3.
Soros finances their campaigns.
Another moron politician that needs to be in jail himself.
Then when any of these politicians come to a red state we can arrest them and give them a trial also. There is allot of talk on thier part that was and is far worse,
Racine is an idiot and Turley is a joke if he believes anyone can be charged. If they could then every demonchit including Pelosi, Biden, etal could be charged for inciting BLM and Antifa thugs
What do you expect from the Fifth Columns District Attorney ? The Democrat hate group of enemy insurgents, that rip down American historical monuments like the Taliban they actually are, know that they have to make this their Reichstag fire.
Looking at the larger picture, Mr. Racine’s proposed actions, along with the complete failure of local law enforcement to protect the Capitol, point out the reason D.C. should not become a state and perhaps have its home rule further limited. The nation’s capital in located in a federal district for the precise reasons that the framers of the Constitution did not want to depend on local authorities for protection and they did not want local authorities to have an outsized input into national affairs. The current District government has proven itself incapable of the former and all too eager to exercise the latter.
On a related matter, I am not altogether certain that Racine’s office has the authority to prosecute for any offense worth prosecuting. Racine’s office has limited jurisdiction. Most of the crimes his office prosecutes are minor misdemeanors.